Calcutta High Court (Appellete Side)
For The vs Union on 25 January, 2011
Author: Pratap Kumar Ray
Bench: Pratap Kumar Ray
1
25.01.2011.
W.P.C.T. 184 of 2010
Mr. Kallol Kumar Maity
... For the petitioners.
Mr. Ashis Sanyal,
Ms. Tamalika Das
... For the respondent.
_______
Pratap Kumar Ray, J.
Heard the learned Advocates appearing for the parties.
Assailing the order dated 9th February, 2010, passed in O.A. 526 of 2004, by the Central Administrative
Tribunal, Calcutta Bench, Calcutta, this writ application has been filed. The impugned order reads such:-
"Above application has been filed under Section 19 of the
Administrative Tribunal Act, 1985 seeking the following relief:-
"a) A order quashing the charge memorandum No. E/Staff/D&A/SLR/5134/S dated 29.3.2001 and
the impugned letter under Office Memo No. E/Staff/D&A/SLR/3864 dated 19.11.2003 issued from the office
of the Deputy Chief material manager/ 1 Kharagpur, the Respondent no. 2 communicating the imposition of
illegal penalty of 25% cut in the monthly pension as admissible for the period of 15 years as well as
withholding the DCRG amount of Rs. 1, 72, 244/- (one lakh seventy two thousand and two hundred forty four)
only and in consequence of it starting deduction of the monthly pension of an amount of Rs. 1919/- (one
thousand nine hundred and nineteen) only from the pension amount of the applicant from the month of
December 2003 without releasing all the service dues including gratuity, leave salaries and commutation with
interest at the rate of 18% per annum for illegal detention of payment of the same amount payable to the
applicant in accordance with law and for an order for giving payment to the applicant.
b) Any order or further order/orders as the Hon'ble Tribunal may deem fit and proper".
2. Brief facts of the case are the applicant retired from Railway service on 30.06.2001. While he was in
service, he was served with a charge memo dated 29.03.2001. the applicant submitted his representation dated
06.04.2010 for supply of charge memo on 18.05.2001 (Annexure P-3). The applicant repeatedly requested for
supply of documents by submitting representations. From the date of retirement till 21.02.2002 departmental
enquiry proceeding was not concluded. The enquiry proceeding was illegal. The applicant was unnecessarily
harassed and he could not get the retrial dues except Provident Fund and provisional pension. The applicant filed
an O.A. No. 534 of 2002 for direction upon the respondents to quash the charge memo and proceeding initiated
against him and further for grant of retirement benefits. On 3.10.2002, this Tribunal disposed of the O.A. and
directed the respondents to conclude the disciplinary proceedings initiated on 21.02.2001 within a period of 6
months from the date of receipt of a copy of the order. The respondents failed to conclude the enquiry within the
time frame fixed by the Hon'ble Tribunal. They had filed an M.A. No. 178/2003 for extension of time to conclude
the departmental proceeding. Time was extended by 6 weeks from 25.9.2003. The Disciplinary Authority i.e. the
2
Deputy Chief Material Manager/I.S.E. Railway, Kharagpur issued an order dated 19.11.2003 (Annexure P-6) in
which the penalty of 25% cut in the monthly pension is admissible to the charged official is imposed i.e. on the
applicant for a period of 15 years and DCRG of Rs. 1,72,244/- admissible to the applicant, is withheld. The said
order was communicated to the State Bank of India, Bankura Branch and advised to deduct the said amount from
pension. The applicant submitted representation on 08.01.2004 and 10.01.2004 to the; Dy. FA-CAO(w/s) KGP,
S.E. Railways and Deputy Chief Material Manager-I respectively against the said order of penalty. The applicant
has challenged the order of penalty in this O.A., being illegal, against law and capric, procedure under Rule 9 of
RS(D&A) Rules has not been followed, arbitrary and negation of rule of law.
3. While arguing the case ld. Counsel for the applicant submitted that the impugned order is not a
speaking order, copy of the Commission opinion and the order of the President was not supplied. The enquiry was
delayed due to frequent transfer and promotion of the Enquiry Officers. Hence the impugned order is violative of
principles of natural justice and is liable to be quashed and the respondents be directed to grant all the amounts
mentioned in the order.
4. Per contra the respondents have filed detailed reply refuting the averments made in the O.A. it is
their submission, that the applicant while working as BSK Gr.I was served with a memorandum of charges dated
29.03.2001. the applicant submitted his representation to the charge memo. The Disciplinary Authority appointed
the Enquiry Officer to enquire into the charges levelled against the applicant. The applicant caused delay in
concluding the enquiry proceedings. In the meanwhile, the applicant caused delay in concluding the enquiry
proceedings. In the meanwhile, the applicant retired from service on 30.06.2001. He filed O.A. No. 534 of 2002
challenging the said charge memo on the ground of delay in enquiry proceeding. As directed by this Tribunal on
3.10.2002 and orders on M.A. 529/2003 for extension of time, after conducting the enquiry, the Enquiry Officer
submitted his enquiry report dated 18.02.2003. D A R case was sent to the Railway Board vide letter dated
8.5.2003 to obtain sanction of the President of India for final action against the applicant. The order of this
Tribunal in M.A. No. 178 of 2003 dated 25.09.2003 was sent to the Railway Board. Subsequently M.A. No. 320
of 2003 and M.A. No. 529 of 2003 were filed seeking extension of time to take decision by the competent
authority. Applicant filed CPC. No. 95 of 2003 for non-compliance of court's order. During pendency of the CPC
for disposal, the Railway Board by letter dated 05.11.2003 communicated the Presidential order. The Disciplinary
Authority i.e. the Deputy Director, Establishment (D&A) Railways issued an order dated 5.11.2003 along with
the order dated 5.11.2003 of the President vide Annexure R-3 along with advice of UPSC. The applicant received
the penalty advice on 21.11.2003. The order of this Tribunal has been complied with within the time limit by
05.11.2003.
5. The delay in conducting the enquiry was due to the applicant and his defence assistance took
adjournments. The applicant dated 22.06.2001 for supply of documents for his defence was addressed not to
Disciplinary Authority, but the Enquiry Officer. Those documents were made available to the applicant during the
course of enquiry and date of appearance was fixed on 22.06.2001. Subsequently the Enquiry Officer was
transferred, another enquiry office was appointed and fixed the date of enquiry on 21.05.2002, 22.05.2002. The
applicant requested for postponement of enquiry and requested for additional documents. Enquiry date was fixed
on 19.08.2002. Under Rule 9 of R.S.(Pension) Rules, 1993, proceedings could not continued even after retirement
of the charged officer and could be concluded with the approval of the President of India. The Enquiry Officer
fixed the next date of hearing on 16.12.2002, 17.12.2002, 23.12.2002 and 24.12.2002. The enquiry was concluded
on 23.12.2002 and 24.12.2002 and recorded the statement of witness. The enquiry proceeding was postponed and
fixed the date of hearing on 27.01.2003, 28.01.2003 as last chance. The Enquiry Officer concluded the enquiry
and submitted his report on 17.02.2003 holding that the charges are proved. Enquiry report was supplied to the
applicant on 20.03.2003. The applicant did not submit his representation against the enquiry report. Enquiry
report was sent to the Railway Board for orders of the President and for final decision under Rule 9 of Railway
Servants (Pension) Rules, 1993. Ld. Counsel for the respondents submitted that there is no procedural
irregularities, all the procedures under the Railway Servants (D&A) Rules have been followed, hence, the O.A. is
liable to be dismissed.
6. The ld. Counsel argued the applicant did not ask for any additional document and as such there was
no question of supplying the document to him. The representation dated 22.06.2001 for supply of documents
required by him for his defence was not to the Disciplinary Authority, but the Enquiry Officer. All the documents
as desired by the applicant, before the Enquiry Officer, were made available during the course of enquiry. While
3
passing orders the Commission's advice was considered. Subsequently the order of payment of settlement dues
dated 02.01.2004 was issued. The respondents already paid the applicant the Provident Fund, GIS. Provisional
Monthly Pension except DCRG, Leave Salary, Commutation Value of Pension. The applicant was intimated that
after adjustment of lave salary a sum of Rs. 1, 04, 390/- against the railway dues, a sum of Rs. 1, 27, 500/-
towards damage rent of railway quarters which was under the occupation of the applicant, the rest amount of Rs.
23, 110/- was lying not recoverable which will be recovered from the Dearness Relief of the applicant.
7. The applicant filed rejoinder. The direction dated 2.10.2002 of this Tribunal in O.A. 534 of 2002 and
subsequent orders on M.As have not been complied with. It is submitted that date of enquiry was fixed on
23.12.2002 and 24.12.2002 and the applicant attended the Enquiry on 23.12.2002 but did not attend on
24.12.2002 due to sickness and also the applicant sent Telegram and Sick Certificate on 25.12.2002. the next date
of Enquiry was fixed on 27.1.2003 and 28.1.2003 but due to sudden cardiac attack he sent sick certificate on
15.1.2002 but the Enquiry Officer whimsically prepared the Enquiry Report vide letter dated 27.2.2003.
Therefore, it is not true that the Enquiry Officer submitted his Enquiry Report on 17/18.2.2003. On the basis of
that it is stated that no damage rent arises as there is retention permission of the authorities concerned. It is further
submitted that in the order dated 18.2.2008 in connection with O.A. No. 535 of 2002 against unoccupied
occupation of Quarter No. 3A at Bankura and after hearing the Hon'ble Mr. P. K. Chatterjee, Administrative
member is of the view that the action of the respondents in recovering the penal rent would not be justified and
thus O.A. is allowed and order of recovery dated 3.4.2001 is set-aside and also the amount of Rs. 16, 840/- may
be paid back to the applicant.
8. We have heard ld. Counsel for the parties to the lis. We have given our anxious consideration to the
pleadings and the submission made by the ld. Counsel. In our view the issues that would arise for our
consideration are as follows:-
(1) Whether the Enquiry Officer has followed the procedure under Rule 9 of Railway Servants
(Discipline & Appeal ) Rules?
(2) Whether the impugned order of penalty issued by the President is a speaking order?
9. It is an admitted fact from either side that the applicant was served with a charge memo dated
29.03.2001. Along with the charge memo list of documents and list of witnesses were supplied. The charges
levelled against the applicant are as follows:-
" Sri S.L. Roy, DSK-I while functioning in RE Store Deport, ADA during the period of his service
upto 12.1.2001 did not take any initiative in his work which does not substantiate with the ledger cares and
ground balance of the Rs. 446944/- (Rupees four lakh forty six thousand and nine hundred forty four only) as
detailed in the statement of imputation at Anexure -II. That Sri S.L. Roy failed to furnish any reply to the said
shortage of the materials inspite of issuing his several letters by Dy. COS(HE)/BES".
The applicant submitted his representation to the charge memo. The applicant applied for supply of
documents vide his representation dated 06.04.2003. Subsequently he submitted representation to the charge
memo and denied the charges. The enquiry officer was appointed and conducted the enquiry. During the course of
enquiry the applicant requested for supply of certain additional documents. The documents were not supplied
because all the documents were available before the Enquiry Officer. Averments made in the reply that the
applicant did not ask for any additional documents, hence, there was no question of supplying further documents.
It is contended that the representation dated 22.6.2001 for supply of documents required by him for his defence
not to the Disciplinary Authority, but to the Enquiry Officer. As per the submission from either side, it is
confirmed that all the documents as desired by the applicant before the Enquiry Officer were not made available
to the applicant during the course of enquiry. The Tribunal directed the respondents in the O.A. 534 of 2002 to
conclude the disciplinary proceedings initiated on 21.02.2001 within a period of 6 months from the date of receipt
of a copy of this order. When that was not possible, subsequently the respondents moved by way of filing M.A.
178 of 2003 for extension of time. Accordingly time was extended by 6 weeks from 25.09.2003. Subsequently the
enquiry was conducted. Due to frequent change of the Enquiry Officers, enquiry was not concluded. On 2-3
occasions the applicant requested for adjournment on the ground that the Defence Assistant was snot available. In
this matter the respondents have stated in the reply statement that the first enquiry sitting was fixed on
22.06.2001. On the request of the applicant the case was adjourned to 09.09.2001. Thereafter enquiry proceeding
4
was conducted on 12.11.2001., 13.11.2001. The applicant sent telephonic message for adjournment. From time to
time, the enquiry was extended. In the meantime, the Enquiry Officer was promoted and posted on transfer.
Enquiry was fixed on 21.05.2002 and 22.05.2002. The applicant attended the enquiry, but it was not completed ad
adjourned for the next date since he demanded some additional documents to defend his case. The date of enquiry
was fixed on 19.08.2002. The Defence Counsel did not attend the enquiry. The applicant sought time on the
ground of illness. On these grounds, the enquiry was delayed. As per Rule 9 of the Railway Servants (Pension)
Rules, 1993 the proceeding could be continued even after retirement of the employees. As per the Railway
Board's letter dated 09.02.1990, time schedule for completion of the enquiry is mandatory but it is not possible to
follow in each and every case as each disciplinary case has its own characteristics. Delay was due to non-co-
operation on the part of the applicant and due to transfer and promotion of the enquiry officers. After a month the
Disciplinary Authority appointed another Enquiry Officer Sri Arjun Singh on 21.04.2004.
10. After considering the submission from either side, the delay in conclusion of enquiry both from the
departmental side as well as from the applicant's side, the respondents have admitted that the enquiry officers
were changed. While arguing, the ld. Counsel for the respondents submits, the time given by the Tribunal was
short, the enquiry has to be concluded within time frame, hence adjournment was not given as sought by the
applicant. Then finally, the enquiry was concluded and copy of the Enquiry Report was supplied on the applicant.
11. Seeing all these contentions taken from either side, the delay is caused from both sides. We
consider that the delay is not on one side. Applicant and the respondents both sides are responsible for the delay
in enquiry. On the foregoing contentions from either sides, it is clear that the respondents did not conclude the
enquiry as directed by the Tribunal in O.A. No. 534 of 2002, even subsequent order of extension under M.A. No.
178 of 2003. Order dated 3.10.2002 in O.A. No. 534 of 2002 expired on 08.05.2003. M.A. No. 178 of 2003 was
filed on 15.05.2003, by that time, earlier time granted had already been expired. The Disciplinary proceedings
were concluded only on 05.11.2003. When they failed to comply with the direction dated 03.10.2002, the
disciplinary proceeding initiated against the applicant lapsed on 09.05.2003. Subsequent extension of 6 weeks
from 25.09.2003 has become infructuous. If the direction of the Tribunal has not been followed, the entire
proceedings impugned vitiates as held by the Tribunal reported in 2005 (1) CAT 155-Mahendra Doshi v. Union
of India & Ors. and 2008 (1) AISLJ-191 (CAT)- Trilok Singh v. Ministry of I &B & Another. Whether the
Enquiry Officer has followed the procedure? Admittedly the respondents did not supply the additional documents
sought by the applicant. It is their submission that all the documents were available with the Enquiry Officer, but
the applicant did not submit his application to the Disciplinary Authority, he submitted his representation to the
Enquiry Officer. When the applicant submitted his representation to the Enquiry Officer for supply of certain
documents, the Enquiry Officer has to submit application to the Disciplinary Authority or he can supply the
documents. The documents sought were not confidential. The amendment to Rule 9 of R.S. (D&A) Rules, 1968
lays down that:-
"...the additional documents, if any, when asked for by the charged Railway servants for inspection
by him, he will submit his request in this regard to the enquiry officer and not to the disciplinary authority, as
was the procedure heretofore. The enquiry officer will take a decision with regard to their relevance in relation
to his defence and summon the documents from the concerned authority who may be the custodian of those
documents so as to arrange their inspection by the charged officer if considered necessary by him. (Railway
Board leter No. 77/Vig./I/VP/22 dated 20.02.1981)".
12. The request of the Railway Servant to have access to additional documents which are not
mentioned in the list of documents sent to him with the charge sheet will henceforth be considered by the enquiry
officer and not by the disciplinary authority. (Railway Board's letter No. E (D&A) 78-RG 6-11 dated 06.02.1980
(CSC 21/80). After obtaining permission he could have supplied the documents to the applicant, hence the
applicant was denied the supply of documents. Nowhere the respondents have stated that the day to day
proceedings were supplied to the applicant. Supply of copies of oral evidence was recorded. The Hon'ble
Supreme Court in the case of Raizada Triloknath v. Union of India held that, failure to furnish copies of
documents amounts to a violation Article 311 (2) of the Constitution of India. They have not stated in the reply
that the opportunity was given to the applicant to cross examine the witness. According to the memorandum of
charges, list of witnesses are as per Annexure R-I and that has not been produced by the respondents. Considering
the fact, rule position and judgement of the Hon'ble Supreme Court, it appears that the principles of natural
justice has been violated. After conclusion of enquiry the respondents sent the Enquiry Report along with the
5
charge memo, the Enquiry Report and the representation submitted by the applicant as forwarded to the Railway
Board, in turn sent to the President to take final decision under Rule 9 Railway Servants (Pension) Rules. The
President obtained the opinion of the Commission and passed order dated 5.11.2003. Said order reads as follows:-
to Rule 9 of R.S.(D&A) Rules, 1968 lays down that :-
" The President has considered the report of the Inquiry Officer in the disciplinary case of ShrI S.L.
Roy, retd. DSD Gr.I/OSD/KGP, South Eastern Railway, the representation of Shri Roy thereon and other case
records in respect of the charge levelled against him vide charge memorandum No.E/Staff/D&A/SLR/5134/S
dated 29.3.2001. As required under the rules, the Union Public Service Commission has also been consulted
by the President. A copy of the Commissions's advice as contained in their letter No. F. 3/139/2003-S.I dated
4.11.2003 is enclosed.
The President has observed that the Charged official made no effort to establish the charge against
him was not correct. He simply attributed the shortages to the failures in system but this contention is devoid
of merit. The allegation that he was denied reasonable opportunity to defend the case is also without basis.
The President has held that the Charged Official exhibited gross negligence in performance of his duties and
that the charge established against him constitutes grave misconduct. After taking into account all relevant
facts of the case, the President has decided that a penalty of 25% cut in the monthly pension as admissible to
the Charged Official be imposed on him for a period 15 years and the DCRG amount of Rs. 1, 72, 244/-
admissible to the charged official be also withheld".
BY ORDER AND IN THE NAME OF THE PRESIDENT.
13. As per the aforesaid order the President has obtained advice of the Commission vide letter dated
4.11.2003, but the said advice has not been enclosed with the impugned order. Ld. Counsel for the applicant
submits that he did not received the order of the President and the advice of the Commission dated 04.11.2003, the
applicant received the order dated 19.11.2003 issued by the Deputy Chief Material Manager/I, Kharagpur in which
there is a note that copy of the order dated 5.11.2003 and UPSC's letter dated 4.11.2003. The respondents are not
able to convince the order of the President and copy of Commission's advice was served on the applicant. They
have not produced the acknowledgement for having served the opinion of the Commission and order of the
President. When the applicant could not received the enclosed orders of the President and the UPSC, the applicant
challenged only the order dated 19.11.2003 and the consequential order dated 18.12.2003 and advised the back to
recover the amount from the pension.
14. We have carefully examined the orders of the Disciplinary Authority. As per the order of the
President which is enclosed along with the reply statement as per Annexure R-3. No reasons are assigned. The
President has imposed the penalty based on the Commission's advice but not applied independent mind. In the
order, reference is only that the charged official made no efforts to establish that the charge levelled against him,
was not correct. Contention of the applicant is that he was denied reasonable opportunity to defend the case and
supply of additional documents. The President has come to the conclusion that the charged official exhibited gross
negligence in performance of his duties and the charges were established against him. After taking into
consideration all relevant facts of the case, the President decided to impose the penalty as mentioned in the order.
This observation does not speak about the charge levelled against the applicant, the procedure followed by the
Enquiry officer, no reasons were assigned on the objection of the applicant. While imposing the penalty the
Disciplinary Authority, the President has to assign the reasons. While imposing major penalty personal hearing of
the delinquent official was also mandatory. In the present case the President after obtaining the advice from the
Commission dated 4.1.2003 imposed the penalty without personal hearing of the applicant and also without
application of independent mind. Before imposing the penalty, a copy of the Commission's advice dated
4.11.2003 was also not supplied to the applicant, which is mandatory as per Rule 28 of R.S. (D&A) Rules to give
copy of the advice of UPSC and also reasons of disagreeing with the same to the delinquent official. Rule 28 is
extracted as under:-
"Supply of copy of Commission's advice
Wherever the Commission is consulted as provided in these rules, a copy of the advice by the
Commission and, where such advice has not been accepted, also a brief statement of the reasons for such non-
acceptance, shall be furnished to the Railway servant concerned along with a copy of the order passed in the
case by the authority making the order".
6
We also note that a Division Bench of the Tribunal in Charanjit Singh Khurana vs. Union of India,
1994(2) SLJ (UJ) 360 while following the Constitution Bench decision in MD ECIL v. B. Karunakar, Ramzan
Khan and D.C. Agarwal's case has laid down that the copy of a UPSC report has to be made available. The said
decision is as follows:-
"17. The reasoning given by Their Lordships of the Supreme Court in the case of Managing
Director, ECIL, Hyderabad (supra) for the supply of a copy of a report of the Inquiry officer to a delinquent
also apply to the advice given by the Commission. The reasonings given by the Commission in support of its
advice are an additional material unknown to the employee but are taken into consideration by the Disciplinary
Authority while arriving at its conclusion. The advice of the Commission constitutes an important material
before the Disciplinary Authority, which is likely to influence it conclusion. We, therefore, take the view that
the right to receive a copy of the advice of the Commission is an essential part of the reasonable opportunity at
the first stage, as envisaged in Article 311(2 of the Constitution and also a requirement of the principles of
natural justice. Before the judgment of the Hon'ble Supreme Court in Managing Director, ECIL, Hyderabad
(supra) the legal position was fluid and the mist has been cleared now. Rule 32 of the rules by necessary
implication denied to a delinquent employee the right to receive a copy of the advice of the Commission before
the Disciplinary Authority took its decision on the question whether the charge against such an employee stood
established. Keeping in view the fact, that innumerable orders of the Disciplinary Authority would be rendered
bad on the ground that a copy of the advice tendered by the Commission to the Disciplinary Authority had not
been supplied to a delinquent employee by the Disciplinary Authority before imposing a punishment upon
him, we feel that such an illegality should not be taken into account in cases where the Disciplinary Authority
had passed order of punishment before 1.10.1993, the date on which the Hon'ble Supreme Court rendered its
judgment in the case of Managing Director, ECIL, Hyderabad (supra). We, therefore, hold that the petitioner
cannot derive any advantage of the fact that a copy of the advice of the Commission was not furnished to him
before the passing of the impugned order".
15. Without hearing the applicant, the President has imposed the penalty which violates the principles
of natural justice. We have to test, nowhere the Disciplinary Authority i.e. the President has exercised the power
vested in him while imposing the penalty. On receipt of the representation to the enquiry report, the entire case
was sent to the Railway Board for order of the President for taking final action in terms of Rule 9 of
R.S.(Pension) Rule, 1993. The pre-requirement of Presidential approval was advise of UPSC. Direction of the
Tribunal to decide the case within time frame has not been complied with.
16. As observed in the earlier para, the contention of the applicant the impugned order is cryptic, no
reasons are assigned, whimsical, capricious. We have to test the impugned order is a reasoned order as held by the
Hon'ble Supreme Court. The order of the President is extracted in Para 11 supra, which does not speak the
reasons. The charges levelled against the applicant, objection to the charge memo, the procedure of enquiry
followed by the Enquiry Officer was in accordance with Rule of R.S. (D&A) Rules. The principles of natural
justice has been followed by the Enquiry Officer and the Disciplinary Authority. We are of the view, the
impugned order is not a speaking order as held by the order as held by the Hon'ble Supreme Court. The reasoned
order should be as held by the Hon'ble Supreme Court in the case of Ram Chandra v. Union of India reported in
1986 (2) SLR-608, Apparel Export Promotion Council v. A.K. Chopra reported in 1999 SCC(L7S)-405 and
Narinder Mohan Arya v. United India Insurance Co. Ltd. reported in (2006) 4 SCC 713. The authority must give
reasons even while affirmation need not contain elaborate reasons, but that does not mean that the order of
affirmation need not contain any reasons whatsoever. The order must contain some reasons, at least in brief, so
that one can know whether the appellate authority has applied its mind while affirming or reversing or modifying
the order of the Disciplinary Authority. The purpose & disclosure of reasons is that the people must have
confidence in the judicial or quasi-judicial authorities, unless the reasons are disclosed, how can an 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. The reasoned order should be in accordance
with the judgment of the Hon'ble Supreme Court reported in 2004(7) SCC-431-Cyril Lasrado (Dead) By Lrs.
And Others v. Juliana Maria Lasrado & Another.
7
"12. Even in respect of administrative orders. Lord Denning, M.R. in Breen v. Amalgamated Engg.
Union observed. (All ER p. 1154h). "The giving of reason is one of the fundamentals of good
administration". In Alexander Machinery (Dudley) Ltd. v. Crabtree is 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 court.
Another rationale is that the affected party can know 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".
Reason is the heart beat of every conclusion, without the same, it becomes lifeless as held by Hon'ble
Supreme Court in the case of Raj Kishore Jha vs. State of Bihar reported in (2003) 11 SCC 519. How to consider
the case is an directed by the Hon'ble Supreme Court in the case of R.P Bhatt v. Union of India reported in (1986)
2 SCC 651 and Divisional Forest Officer, Kothagundam & Ors. v. Madhusudan Rao reported in 2008 (2) SC 253.
17. The documents were not supplied to the applicant. The direction of the Tribunal in O.A. No. 534
of 2002 dated 03.10.2002 was not complied with. We find the impugned order is not in accordance with the
judgment referred to above and the Commission's advice and President's order were not supplied to the applicant.
On those reasons the applicant was prejudiced and principles of natural justice were violated. The procedure of
enquiry adopted by the respondents vitiates. Accordingly the impugned order is not sustainable in law, though it
is not challenged, the order dated 5.11.2003 (Annexure R-3) is quashed. Accordingly we answered the issues
raised supra.
18. The O.A. is allowed, the charge memo dated 29.03.2001 and order dated 1911.2003 are quashed.
The respondents are directed to reimburse the DCRG amount and other benefits to which he is legally entitled as
the applicant retired in normal course, from the date of retirement till the date of payment. The applicant is
entitled for the consequential benefits with interest at the rate of 8% per annum.
19. The O.A. is allowed to the extent as indicated above. No order as to cost".
On a bare reading of the impugned order passed by the learned tribunal
below the following facts are revealed:-
(i) That Hon'ble President of India who is the authority to pass punishment on considering the
enquiry report of the disciplinary authority, did not pass any reasoned order, save and except, the
contention that the delinquent failed to establish that the charges levelled against him were not
correct, which is a contrary proposition of law as the law of the land even in the criminal
proceeding as well as in the departmental proceeding is that the accused and/ or delinquent as the
case may, does not require to prove his charge that he is not guilty, but the prosecution must prove
in criminal proceeding to a highest degree and in departmental proceeding on principle of
"preponderance of probability".
8
(ii) The order of Hon'ble President, was passed relying upon the recommendation of Union Public
Service Commission, but there was no reflection and/or whisper about the nature of
recommendation as made by the Union Public Service Commission, in the order passed by the
Hon'ble President of India to impose penalty to the delinquent.
(iii) The report of Union Public Service Commission recommending punishment was not served to the
delinquent and no objection was sought for from the delinquent against recommendation of Union
Public Service Commission before the Hon'ble President had considered the report of enquiry and
other documents, for the purpose of imposition of penalty.
(iv) The departmental proceeding continued exceeding the time limit prescribed by the statute and even on
exceeding the time limit fixed subsequently by the learned tribunal in another original application
moved by the delinquent.
Learned tribunal below applied principle of "reasoned order" to quash and set aside the impugned
punishment imposed upon the delinquent.
Reasoned order is the soul and heart of every actions of administrative body, judicial body and/or the quasi
judicial or quasi administrative body. The doctrine of reasoned order or reasoned decision has been grounded firmly in
the Indian judiciary. Right to reason, right to information and to be informed with the reason all are within domain of
Article 19(1) and Article 21 of the Constitution of India, has been settled by the Apex Court in the judgment Ravi S
Naik Sanjay Bandekar vs. Union of India, reported in AIR 1994 SC 1558. Administration is under a general duty to
act fairly and fairness founded on reason, is the essence of right and equality, is also the principle laid down by the Apex
Court in the case Manager Government Branch Press vs. D.B. Belliappa, reported in AIR 1979 SC 429. It is one of
the fundamental of good administration is the observation of Lord Denning MR in the case Breen vs. Amalgamated
Engineering Union Limited, reported in 1971 (II) QB 175. The maxim "Cessante ratione legis ipsa lex" is a settled
maxim which means the reason is the soul of law, when reason ceases, so the law itself (reference: Grooms legal
maxim/ 1939 edition page 97). The said maxim has been referred to and relied upon by the Apex Court in the
Constitution Bench judgment passed in the case H. H. Shri Swamiji of Shri Amar Mutt Bhandarikeri Mutt vs.
Commissioner Hindu Religious and Charitable Endowments Department: State of Mysore, reported in 1979 (4)
SCC 642. It is also a settled law as voiced by Justice Subbarao in the case Madhya Predesh Industries Limited vs.
9
Union of India reported in AIR 1966 SC 671 in the language that "justice not only to be done but to be felt to have
been done, where reason is must". It is also the essential of justice, is the view echoed by the Apex Court in the case
State of West Bengal vs. Atul Krishna Shaw reported in AIR 1990 SC 2205. The absence of reason is nothing but
non-application of mind, is the view expressed by the Apex Court passed in the case Shanti Prasad Agarwalla vs.
Union of India, reported in AIR 1991 SC 814. In the case S. N. Mukherjee vs. Union of India, reported in AIR
1990 SC 1984, the Court held "a right to reason is an indispensable part of sound system of judicial review. Reasoned
decision is not only for the purpose of sharing that the citizen is receiving justice, but also a valid discipline for the
tribunal itself, therefore, statement of reasons is one of the essential of justice". "Reason is the heart beat of every
conclusion. It produces clarity and without the same, it becomes lifeless", is the view expressed by the Apex Court in
the case Steel Authority of India Limited vs. S.T.O., reported in 2008(9) SCC 407. Even when while affirming a
decision of appellate or revisional authority, reason must be assigned, is the view expressed by the Apex Court in the
case Chairman Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank vs. Jagadish Sharan
Varshney and Others reported in 2009(4) SCC 240 wherein earlier views of the Apex Court passed in the cases
namely, Divisional Forest Officer Kothagundem vs. Madhusudhan Rao reported in 2008 (3) SCC 469, Madhya
Predesh Industries Limited vs. Union of India reported in AIR 1966 SC 671, Siemens Engineering and
Manufacturing Company Of India Limited vs. Union of India reported in 1976 (2) SCC 981 were relied upon. In
the case Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota vs. Shukla
and Brothers reported in 2010 (4) SCC 785 the Court held "assigning of reason is the basic principle of natural
justice". Very recently exhaustive analysis has been made by Justice A. K. Ganguly in the case Kranti Associates
Private Limited and Another vs. Masood Ahmed Khan and Ors. reported in 2010 (9) SCC 496 by discussing the
origin of that principle and the latest development in detail.
Considering different judgments of the Apex Court the Division Bench of this Court wherein Pratap Kumar
Ray, J. was a presiding Judge delivered two judgments in the cases Sudhir Kumar Saha vs. State of West Bengal &
Ors. reported in 2010 (1) C.L.J (Cal) 170 (DB) and Madhusudan Mondal vs. State of West Bengal & Ors
reported in 2010(1) C.L.J (Cal) 222 (DB). In the case State of West Bengal vs. Alpana Roy, reported in 2005 (8)
SCC 296, the Apex Court considered the views expressed in the case Breen Vs. Amalgamated Engineering Union
Limited (supra) and Alexander Machinery (Dudly) Ltd. vs. Crabtree, reported in 1974 ICR 120 (NIRC).
Subsequently in the case Jagatamba Devi vs. Hem Ram & Ors., reported in 2008 (3) SCC 509, the Court considered
10
different earlier judgments of the Apex Court as well as English decisions to advance the theory of speaking order
doctrine.
Having regard to such settled law, few judgments of which have been
relied upon by the learned tribunal below, the order of the Hon'ble President of
India, imposing penalty on considering the report of enquiring officer and Public
Service Commission, is hit by the said principle of reasoned order. Order of the
Hon'ble President reads such:
"Government of India
Ministry of Railways
(Railway Board)
No. E. (D&A) 2003 AE 9-5 5.11.2003
ORDER
The president has considered the report of the Inquiry Officer in the disciplinary case of Shri S. L. Roy, retd. DSK Gr. I/GSD/KGP, South Eastern Railway, the representation of Shri Roy thereon and other case records in respect of the charge levelled against him vide charge memorandum No. E/Staff/D&A/SLR/5134/S dated 29.3.2001. As required under the rules, the Union Public Service Commission has also been consulted by the President. A copy of the Commission's advice as contained in their letter No. F.3/139/2003-S.I dated 4.11.2003 is enclosed.
The President has observed that the Charged Official made no effort to establish that the charge against him was not correct. He simply attributed the shortages to the failures in system but this contention is devoid of merit. The allegation that he was denied reasonable opportunity to defend the case is also without basis. The President has held that the Charged Official exhibited gross negligence in performance of his duties and that the charge established against him constitutes grave misconduct. After taking into account all relevant facts of the case, the President has decided that a penalty of 25% cut in the monthly pension as admissible to the Charged Official be imposed on him for a period of 15 years and the DCRG amount of Rs. 1, 72, 244/- admissible to the Charged Official be also withheld.
By order and in the name of the President.
( D. D. Kapoor) Joint Director Establishment (D&A) Railway Board".
11On a bare reading of the said order, it appears that there was no reason assigned as to why the delinquent exhibited gross negligence in performance of his duties of the charge established against him. There was no whisper and even no discussion in cryptic manner, about findings of the enquiring officer, justifying its acceptance by President, the Disciplinary Authority. Furthermore, from the said order, it appears that the advice of Union Public Service Commission was considered, but said advice was not communicated to the delinquent asking to file any objection against such advice. Since advice of the Union Public Service Commission and consideration of such advice by the disciplinary authority is within the framework of the statutory rule, the Hon'ble President of India ought to have informed the delinquent about the contents of such advice of the commission asking to file any rejoinder, if any, before passing the final order of punishment, which, in the instant case admittedly has not been done. So it is also a case of consideration of the materials without giving opportunity to oppose such and the action is completely covered by the judgment of the Apex Court passed in the case State of Orissa vs. Benapani Dev reported in A.I.R. 1967 SC 1269. Wherein behind the back of the concerned person/employee who raised age dispute, the authority referred the matter for verification and relied upon such report, but did not supply the copy of the report before taking notice of that. The Supreme Court considered the issue as a breach of principle of natural justice. That judgment is squarely applicable in the instant case. Since the Hon'ble President of India did not communicate the advice of the Union Public 12 Service Commission which was considered by him and since no reason assigned as to why the findings of the enquiring officer was accepted to conclude that charge official exhibited gross negligence, we are of the view that the matter goes to the root of the issue due to breach of the statutory rules which protects the delinquent from any arbitrary action as has been discussed by the learned tribunal below but also a flagrant breach of natural justice. Since it is a serious breach, we are not finding any merit to interfere with the order impugned in writ application.
Writ application, accordingly, stands dismissed.
Urgent xerox certified copy of this order, if applied for, be given. Stay as prayed for stands refused.
(Pratap Kumar Ray, J.) I agree.
(Raghunath Bhattacharya, J.)