Central Administrative Tribunal - Delhi
S.K. Trehan S/O Late Sh. K.K. Kumar ... vs General Manager on 12 March, 2013
CENTRAL ADMINISTRATIVE TRIBUNAL PRINCIPAL BENCH O.A. No.3129/2011 Order Reserved on 12.09.2012 Order Pronounced on: 12.03.2013 Honble Mr. Sudhir Kumar, Member (A) Honble Mr. A.K. Bhardwaj, Member (J) S.K. Trehan s/o late Sh. K.K. Kumar Trehan R/o A-178, Subhadra Colony, Near Shastri Nagar Metro Station, Delhi-110035. -Applicant (By Advocate: Shri M.S. Ahluwalia) Versus 1. General Manager, Northern Railway, Headquarters Office, Baroda House, New Delhi. 2. Disciplinary Authority, Deputy Chief Engineer (Bridge Design) Northern Railway, Headquarters Office, Baroda House, New Delhi. 3. Appellant Authority Chief Bridge Engineer Northern Railway, Headquarters Office, Baroda House, New Delhi. 4. Reviewing Authority, Additional General Manager, Northern Railway, Headquarters Office, Baroda House, New Delhi. 5. Inquiry Officer, Shri S.R. Sharma, Rtd. General Manager/concor 350, Ashoka Enclave-III Sector 35 Faridabad 121003. -Respondents (By Advocate: Shri VSR Krishna with Shri Satpal Singh) O R D E R Mr. Sudhir Kumar, Member (A):
The applicant is before us in this OA, aggrieved by the order dated 21.04.2001 passed by the reviewing authority, upholding the order dated 27.05.2009 passed by the Disciplinary Authority, and has prayed for quashing of the same. The applicant has also assailed the subsequent order dated 03.08.2009 passed by the Disciplinary Authority and has prayed for release of his withheld promotion since June 2006, with grant of consequential benefits, as his juniors had already been given promotion and financial benefits thereupon, and any further relief, as may be deemed fit and proper under the circumstances of the case.
2. The applicant was issued a Memorandum of Article of Charge stating that in connivance with one Shri R.K. Verma, Divisional Engineer, New Delhi, New Delhi Railway Station, he had awarded the contract for supply of 4834 mtrs. PVC Pipe, only to give undue benefit to contractor, which has resulted in a wasteful expenditure of Rs. 7.78 lakhs. It was further alleged that the applicant even failed to check the quality of Pipes supplied, because of the huge quantity of PVC Pipes, and that he had further attempted to take further supply of 5393 mtrs. of PVC Pipes through another Running Account Bill, which payment could not be released due to vigilance check.
3. The disciplinary enquiry against the applicant was started on 01.06.2006, and ended on 10.04.2007, with the Enquiry Officer submitting his report, and concluding that no charges could be sustained against the applicant on the basis of evidence available on record and produced during the disciplinary enquiry proceedings, and holding him to be not guilty. After nearly two years thereafter, on 01.04.2009, the applicant received a Memorandum of Disagreement by the Disciplinary Authority against the findings of the Enquiry Officer in his enquiry report. He submitted his representation on 27.05.2009, but still the Disciplinary Authority imposed upon him the punishment of reduction to a lower stage in the same time scale of pay, by three stages, for one year, without cumulative effect. The applicant has submitted that such imposition of penalty was more than two years after the completion of enquiry on 10.04.2007, and was, therefore, unlawful in terms of the Railway Boards letter dated 20.04.1971 in this behalf, and the total time allowed to the Disciplinary Authority to take a final decision on the enquiry report, as to whether to impose penalty or not, was 55 days only.
4. The applicant appealed against the said order, but even the Appellate Authority rejected the appeal on 03.08.2009, upholding the order of punishment dated 27.05.2009, but without giving any reason, and passing any speaking orders, or giving any opportunity to the applicant, and the applicant has, therefore, alleged violation of Railway Boards instructions dated 03.03.1978, in regard to the procedure adopted by the Appellate Authority also. He filed a further appeal on 09.07.2009, which was also rejected vide order dated 03.08.2009.
5. On 17.09.2009, the applicant filed a review petition, and sent a reminder on 01.04.2010 under Section 25 of the Railway Servants (Discipline & Appeal) Rules, 1968, before the General Manager (Engg.), for review of these orders, but the Review Petition also came to be dismissed through the impugned Annexure A-1 dated 21.04.2011, through the orders passed by the Addl. General Manager.
6. The applicant has assailed the actions of the respondents for having caused an inordinate delay in deciding his disciplinary enquiry case, and that they had also delayed supplying him a copy of the completed enquiry report, and that this has caused mental agony and set back to the promotion of the applicant, and his juniors have, in the meanwhile, been promoted, thereby causing him grave injustice, on the basis of wrong punishment imposed upon him, which is also quite severe, and disproportionate and discriminatory. The applicant has also submitted that while three other officers were also proceeded in the departmental enquiry concerning the supply of PVC Pipes, one Shri A.K. Singh, the then DSE-III, has been let off only with the punishment of counselling, and in respect of Shri R.K. Verma, the then ADEN/NDLS, the penalty of reduction to a lower stage, by two stages, for six months, without cumulative effect, was imposed. The 4th person, Shri Sunil Chaudhary, the then JE/Inspector of Works/NDLS, also got away with a minor penalty of only with-holding of one set of privilege passes. The applicant has submitted that as per the nature of his work and responsibilities, he was supposed to conduct 20% test check on the entries recorded by the immediate site in-charge, the then JE Shri Sunil Chaudhary, alone was directly supervising the work under reference, and was primarily responsible, and, therefore, even if the Disciplinary Authority could have considered him to be at fault at any stage, even then his punishment ought to have been less than that imposed upon Shri Sunil Chaudhary, the then JE, who was directly supervising the work, and had recorded the measurement book for the executed work. He further submitted that it has been held by the Honble Apex Court in a catena of judgments that in the cases of similar offences in a composite case, punishment also has to be similar.
7. The applicant has further submitted that the orders of his punishment have been passed in a biased and prejudicial manner, against the findings of the Enquiry Officer, who had conducted an enquiry after adopting a complete and proper procedure, before returning the unambiguous verdict of Not guilty, and had exonerated the applicant. He has further submitted that the notice for imposition of penalty was issued to him on 27.05.2009, more than 3 years and 3 months after the receipt of Memorandum of charges, which is a clear violation of the Railway Boards instructions dated 09.02.1990, and the time schedule fixed for finalization of departmental enquiry cases by the Railway Boards Circular of 24.04.1995 and 02.07.2004, as well as in violation of the Central Vigilance Commission instructions prescribing the time frame for completion of disciplinary enquiries.
8. The applicant further submitted that he had earlier come before this Tribunal in OA No.2886/2010 against the same impugned order of punishment dated 27.05.2009, but this Tribunal was pleased to dispose off the same on 08.03.2011, without commenting on the merits of the case, as the Review Application of the applicant had not yet been decided by the respondent-Reviewing Authority, which had now been done, through the impugned order dated 21.04.2011 (Annexure A-1). The applicant had assailed the actions and inactions of the respondents on the ground of delay, bias and having acted in a prejudicial manner, in violation of principles of natural justice, and the punishment imposed being quite severe, disproportionate, as well as discriminatory, as compared to the punishment imposed upon others proceeded in the same context.
9. It was further submitted that the respondents have also acted against Rule-10(2) (a) of the Railway Servants (Discipline & Appeal) Rules, 1968, in which, after considering the representation submitted by him in regard to the tentative reasons for disagreement communicated by the Disciplinary Authority, no satisfactory reasons had been given for such disagreement. It was further submitted that the Appellate Authority order is also a non-speaking order, without giving any reasons, and that he did not consider the record/facts, as placed on record, and did not give sufficient reasons for him to justify upholding of the orders passed by the Disciplinary Authority for imposition of the penalty, and no opportunity of hearing was given to the applicant at the appellate stage. The applicant submitted that he had not acted on his own but has only acted as per the instructions of ADEN/DEN/New Delhi, who were his immediate controlling officers, and went on to explain the facts of the case, which necessitated inclusion of placing of orders 110mm dia PVC Pipe with 1.1mm wall thickness to the extent of 5000m. The applicant had thereafter gone on to find fault with the disagreement Memorandum, through grounds a to n, which give the details of the transactions entered into, and as to how the contractor had gone for Arbitration, and further the Honble High Court of Delhi had dismissed the appeal, which had been filed challenging the order of the Learned Single Judge of the Honble Delhi High Court, who had upheld the determination of the arbitrators in favour of the contractor. But we need not go into detail about these facts in this Tribunal, as this Tribunal cannot re-appreciate the evidence adduced during the course of the enquiry. The applicant had also filed as Annexure A-13, a copy of the Honble Delhi High Courts order dated 24.04.2009 in OMP No.670/2007 Union of India vs. M/s N.K. Sharma & Company, in which the order of the learned Single Judge on the issue of Arbitration was passed, and the order of the Honble Delhi High Court dated 20.10.2009 in FAO(OS) 326/2009 and CM Nos. 10703-10705/2009, in which the Honble Division Bench of the Delhi High Court had upheld the orders of the learned Single Judge in the Arbitration proceedings.
10. The applicant had also filed copies of the Railway Service (Conduct) Rules, 1966, as Annexure A-21, and ShriRam Institute for Industrial Research Result Report regarding the concerned PVC Pipes, and a copy of the Northern Railway Engineering Department Work Hand Book Parts I & II brought out for the guidance of the Engineers and Contractors for Engineering works. He had also filed as Annexure A-24, a copy of the Agreement signed between the Contractor and the Divisional Superintending Engineering-III, Northern Railway, New Delhi for supply of items worth Rs.7,32,786.61 paise, for providing 450mm dia tubewell boring at Loco Delhi Pump house, for augmentation of water supply at Delhi main station, and the contract agreement later signed on 01.02.2003 for a further extra required amount of Rs.104,205.33 paise, and a subsequent contract for Rs.16,55,124 entered into with the same Contractor through Contract Agreement No.25/DU. Through all these documents, the applicant had tried to prove that he was not the only person In-charge of awarding of the contracts, and that several other officials were also involved in the award of contract.
11. The Respondents filed their counter reply on 16.02.2012, and submitted that the impugned orders have been passed by the competent authorities in accordance with the relevant rules, instructions, and law on the subject, and do not suffer from any illegality or infirmity, warranting this Tribunal to interfere with those orders. It was further submitted that the applicant was given full opportunity to represent his case, and while finalizing his appeal, he was called two-three times to present his case, but he did not turn up. He was further submitted that there was no willful or deliberate delay in conclusion of the disciplinary enquiry, as the time taken in proceedings in disciplinary action depends upon many factors, including the cooperation of charged employee, and in this case delay had taken place on account of the applicant himself, who had filed a case before this Tribunal even before the finalization of his Review Petition, as he had approached this Tribunal immediately after filing the Review Petition, and since the matter was sub-judice, no decision could be taken by the Reviewing Authority during the pendency of the case, but the Reviewing Authority had decided the case as soon as the case filed by the applicant before this Tribunal was disposed of on 08.03.2011, and the impugned Review order (Annexure A-1) was passed on 21.04.2011.
12. It was further submitted that the Disciplinary Authority had communicated to the applicant only the tentative reasons for his disagreement, and had passed its orders only after due consideration of the reply of the applicant on the points of tentative disagreement. It was further submitted that the applicant alone was In-charge of the site, as well as the stores, and he had allowed execution of orders for quantities much beyond the authority, and hence he had committed serious irregularities, and that the punishment imposed upon him was commensurate with the gravity of the offence committed by him. It was submitted that the disagreement Memorandum prepared by the competent authority, the appellate order of punishment thereafter passed by the competent Appellate Authority, and the revisional orders, have all been passed after going through the relevant records, rules and instructions by passing speaking orders, after following the due procedure as per Rules, and with due application of mind.
13. It was submitted that as per the law, as settled, and as per the Rules in this regard, the Disciplinary Authority is not bound by the report of the Enquiry Officer. It was further submitted that the facts of the Arbitration case between the Contractor and the Railways are not at all relevant for the purpose of a disciplinary enquiry against a Railway employee by his Disciplinary Authorities. It was submitted that it is a matter of technical fact that any internal pipe fitting can be connected to the water source through external pipe, and, therefore, the specification of pipe for external work, cannot be inferior to that for the internal work, and the applicant, herein, had taken supply of pipes, which were not at all included in the sanctioned estimate against the item for supply and fixing of pipes, which was a serious irregularity on his part, as the material did not also conform to the relevant I.S.I. Standards, which were applicable to both items No. 2144 and 2145, regarding which the present disciplinary enquiry was conducted. Therefore, the respondents had denied any wrong doing on their part, and had denied any relation between the orders of the Honble Delhi High Court in the Arbitration case related to the contract with the disciplinary enquiry conducted against the applicant, as such arbitration proceedings cannot have any impact on the irregularity committed by the applicant, for which he is liable to be punished. They had, therefore, prayed that the OA may be dismissed with exemplary cost against the applicant and in favour of the respondents. In support of their contentions, they had filed copies of the Standard Schedule of Rates, and Standard Specifications for Materials and Works, which ought to have been followed, but were given a go-bye by the applicant, which had led to the present disciplinary enquiry case.
14. The applicant had filed a rejoinder on 28.03.2012, more or less reiterating his contentions, as made out in the OA, and further submitting that the respondents had failed to respond on the technical issues raised by the applicant, and, therefore, their reply was illogical and meaningless. He had further submitted that when the Disciplinary Authority had proposed to differ with the conclusion of the Enquiry Officer, before giving a finding on the punishment, the Disciplinary Authority ought to have given him an opportunity of being personally heard. He had further submitted that it was wrong to state that different officials were carrying different responsibilities, and had submitted that actually the applicant had no role in execution of the said work, and most of the roles were confined to Engineer-in-charge, and Site Engineer, and the Engineer above him, who were the persons responsible for execution of the work, but who had been meted out with very little punishment as compared to the applicant, who was not directly In-charge of the work, and even though he had not committed any irregularity, he had been punished heavily.
15. The applicant had further submitted that the respondent-authorities have not properly considered the report of the Enquiry Officer, which had exonerated him, and that even in the tentative reasons for disagreement were arbitrary, as they were not only against the findings of the Enquiry Officer, but also illegal on account of non-application of mind by the Disciplinary Committee. He had submitted that the delay in finalization of the disciplinary enquiry against him was fatal, and that there was sufficient evidence to prove that the applicant had not acted on his own, but had only acted as per the instructions of ADEN/DEN/New Delhi, who were his immediate superior officers. He further submitted that the observations of the Honble Delhi High Court in the two cases regarding Arbitration were very relevant to the disciplinary enquiry case against him, even though the case before the Honble High Court was in respect to challenge to the award of the Ld. Arbitrator in the matter of payment to the contractor, and not into any irregularities committed by the Railway Staff, and more so since the Honble High Court looked into the technical justifications, facts, evidences, and scientific basis and had then only upheld the Arbitration award. It was, therefore, submitted that the case before the Honble High Court did not only relate to the payments to the contractor, but also related to the fairness and justification for the entire process of award of contract, which has been scrutinized and upheld by the Honble Delhi High Court, and hence the charges levelled against the applicant do not survive.
16. The applicant had reiterated that he had only acted on instructions of the superior officers, and such action, therefore, absolves him from any responsibility under Clause 3 (2) (ii) of the Railway Services (Conduct) Rules, 1966, and only his superiors were responsible. It was, therefore, submitted that the penalty imposed upon him is disproportionate, as he was In-charge of only 20% test check during the execution of the contract, and that most of the fault lay with the applicants junior, Shri Sunil Chaudhary the then JE/1/W/NDLS, who had actually supervised the work, and recorded the measurement book for the executed work. He had, therefore, prayed that the OA be allowed, with exemplary cost.
17 On 24.04.2012, the respondents filed another reply. As is apparent from its face itself, this was prepared earlier by them for being filed in the applicants earlier OA No.2886/2011, but since that OA had already been decided on 08.03.2011, hence they chose to file another copy of the same in this OA also. However, it is seen that no new ground has been taken by the respondents in this, and, therefore, the same need not be discussed here.
18. Heard the case in detail, and we have also perused the records of the case. Three issues emerge for our consideration in this case. Firstly, the delay in finalization of the disciplinary enquiry, secondly, the impact of the Honble High Courts judgments in the Arbitration case filed by the contractor concerned on the conduct of the present disciplinary enquiry by the respondents, and thirdly, the dissimilarity of the punishments imposed upon the four delinquent Government officials, who were proceeded against in separate disciplinary enquiries, arising out of the same transactions. The case of the applicant is that there has been an unusual delay in the finalization of the disciplinary enquiry against him, which has rendered the disciplinary enquiry infructuous, in view of the various time lines prescribed in the Guidelines/Circulars issued by the Railway Board, and the Central Vigilance Commission in this regard. However, it is apparent that any such prescription of time lines for finalization of disciplinary enquiry can only be for the sake of guidance, and non adherence to the time limit prescribed for various stages in the disciplinary enquiry does not render the disciplinary enquiry itself as having been vitiated.
19. Therefore, it is clear that the contention of the applicant that the disciplinary enquiry against him stood vitiated on account of delay, cannot at all be accepted, and is liable to be rejected.
20. The second issue for our determination is that when the Honble High Court of Delhi had gone into detail regarding the commercial transaction between the contractor and the Railways, and has passed two judgments in regard to the Arbitration case, both of which have gone in favour of the contractor, no wrong doing can be ascribed to the present applicant on account of the finding of the Honble High Court of Delhi in the judgments dated 24.04.2009 (supra) and 20.10.2009 (supra). However, we have perused the judgments as produced by the applicant as Annexures A-13 & A-14 of the OA. It is seen that in no portion of the judgments of the Honble Delhi High Court has the role or delinquency of any of the Railway employees been discussed by the Honble High Court, and only the claim of the contractor in regard to the amount payable to him on the basis of the quality certifications, as obtained from Shri Ram Institute for Industrial Research, has been discussed before the Ld. Single Judge, who had modified the Arbitral Tribunal award to the extent that the contractor was held to be entitled to Rs.21,00,000/- (Rupees twenty one lakhs only) with simple interest @12% from the date of publishing of the award till the payment of the amount, and the Division Bench had thereafter upheld and fully endorsed the award, as modified by the Ld. Single Judge of the Delhi High Court, and had dismissed the appeal, and all other pending applications. In both these judgments, only the quality of the PVC pipes supplied was an issue, and not the quantity, which is the main basis of the Article of Charge No.I against the applicant before us, for unwarranted, inexplicable and untenable order being placed for supply of 4834 mtrs PVC pipe, and the Article of Charge No. III regarding the applicant having attempted to take further unwarranted, inexplicable, and untenable supply of 5393 mtrs. PVC pipe through running account bill, which would have caused a further loss of Rs.8.67 lakhs to Railways, but for the vigilance check against the applicant. Therefore, it is clear that the applicant cannot be allowed to derive any benefit out of the two judgments of the Honble Delhi High Court in regard to the Arbitration proceedings initiated by the supply contractor, as he has sought to do.
21. Thirdly, while the applicant has not been able to point out any procedural lapse on the part of the respondents, the Disciplinary Authority, the Appellate Authority, or the Revisional Authority, in regard to the decisions taken by them in the matter of the conduct and conclusion of the disciplinary enquiry against the applicant, his main contention has been the disproportionate punishment imposed upon the four delinquent Government officials of the Railways of different seniorities, who were proceeded against by the department in parallel departmental proceedings.
22. As has been held by the Honble Apex Court in its numerous judgments concerning Articles 14 & 16 of the Constitution of India, equality is not a negative concept, and there cannot be a concept of negative equality under the Constitution of India: State of West Bengal & Ors. vs. Debasish Mukherjee & Ors: JT 2011 (11) SC1 (para 21).. The following judgments on the point of discrimination in punishment can also be considered here:-
i) State of U.P. & Ors. Vs. Raj Pal Singh 2010 (4) SCALE 485;
ii) Man Singh vs. State of Haryana and Ors. (2008) 12 SCC 331;
iii) Anand Regional Coop. Oil Seedgrowers Union Ltd. vs. Shailesh Kumar Harshadbhai Shah (2006) 6 SCC 548;
iv) Union of India Vs. Ex-Constable Mohinder Singh (Deceased) Represented through LRs 91(2001) DLT 291 (DB);
23. We have gone through the above judgments. As long as there is any difference in the delinquency of different employees in respect of the misconduct in which they had joined together, imposition of different punishments is not prohibited, because in the case of State of U.P. vs. Raj Pal Singh (supra), the Honble Apex Court had held that it was not open for the disciplinary authority to impose different punishments for different delinquents when it was not able to indicate as to any difference in the delinquency of these employees. But the converse is not true, and if difference in delinquency of the employees can be established, there can be different punishments imposed upon them. Therefore, it is clear that benefit of this cited judgment cannot be provided to the applicant before us.
24. In the case of Man Singh (supra) also, the Honble Apex Court had exercised its extra ordinary powers under Article 142 of the Constitution of India, in order to interfere with the punishment meted out to the petitioner before it, on the reasoning that the punishment imposed on the appellant was arbitrary, and unfair, as compared to that imposed upon his subordinate, who had been completely let off, though the subordinate was held to have been the perpetrator of misconduct. The benefit of this cited judgment cannot also be provided to the applicant, since in this case all the four persons, in whose cases the delinquency had been totally proved, had been punished appropriately, and some had been imposed lesser punishments also.
25. In the case of Anand Regional Coop. Oil Seeds Growers Union Ltd. (supra), the Honble Apex Court had noted that in determining the nature of work, the essence of the matter should be considered and not the designation of the employee, or the name assigned to his post, which cannot be given any undue importance, as for the purpose of establishing supervisory role, the primary duties performed are more important. On the point of parity in punishment, the Honble Apex Court had noted with approval the dismissal of the workmen under the Industrial Disputes Act, 1947, in respect of whom misconduct had been proven. However, since the workmen of similar seniority as a group had indulged jointly in the misconduct, it had noted with disapproval that others against whom identical allegations were there, were not so dismissed, but were allowed to take the benefit of voluntary retirement scheme. In this case before us, the benefit of this judgment of the Honble Apex Court cannot also be extended to the applicant, since no such persons were together involved, at the same point of time, in undertaking the same mischief. They had performed the mischief when the files and the papers concerned had passed their desk, and had only acted in concert or in collusion with each other. Therefore, the benefit of this judgment of the Honble Apex Court cannot also be made applicable to the applicant.
26. In the case of Union of India v. Ex. Constable Mohinder Singh (supra), the incident concerned four Constables together using Criminal Force while assaulting their superior officers, and only one of them had been dismissed from service, while the other three co-accused had been let off with lesser punishments. In that case, the Honble Delhi High Court had held the punishment of dismissal in only one case to be discriminatory and arbitrary, and had awarded monetary compensation to the legal heirs of the deceased applicant/petitioner. Here, no employees of the respondent- Railways have acted together, at the same point of time, as mentioned above also. They acted in perpetrating the mischief in dealing with the papers in a particular manner when the concerned papers and files passed through their desk, and lent there own might, according to their own delegation of powers in perpetrating the mischief. When the respondents have weighed through an enquiry the quantum of their contribution in perpetrating the mischief in respect of the different delinquents, and have punished the others with lesser punishment, the benefit of this judgment cannot also be provided to the applicant before us.
27. As per the law laid down by the Honble Apex Court in the case of Union of India & Ors. vs. Upendra Singh: (1994) 3 SCC 357, this Tribunal cannot relegate itself, and put itself in the shoes of either the Enquiry Officer, or the Disciplinary Authority, or the Appellate Authority, or the Reviewing/Revisional Authority, where such a Review/Revision has been provided for, for undertaking an exercise of re-appreciation of the evidence adduced, and to go into the correctness or truth of the charges. When the evidence regarding the applicant has come on record, and it has been noted that a number of other officers involved in the same excess purchase have been separately punished, without having the full facts of the respective disciplinary enquiries conducted against all those other officials who were also punished, merely based upon the submissions of the present applicant in the context of the disciplinary enquiry concerning him, this Tribunal cannot be a judge of the quantum of punishment having been less in the case of others, and more in case of the present applicant, who was one of the many delinquent officials in the respondent-Railways, against whom separate departmental enquiries had been initiated.
28. It is further clear that those delinquent officials of the respondent-Railways belonged to various levels of seniority. They were not proceeded against in a common departmental enquiry, when there would have been a single set of the Disciplinary Authority, the Appellate Authority and the Revisional/Review Authority. When parallel proceedings are initiated against delinquent officials of various levels of seniority, even though they may be in respect of the same set of events connected with a mischief, not only are the charges different in respect of the delinquent officials of different levels of seniority, but also many sets of Disciplinary Authorities, Appellate Authorities and Revisional/Review Authorities emerge, though many of them may be overlapping sets. The Appellate Authority of a junior delinquent official may be the Disciplinary Authority of his senior, and the Revisional/Review Authority of a junior delinquent official may be the Appellate Authority of his senior delinquent official, and so on and so forth. Therefore, the appreciation of the relative quantum of guilt, based upon the charges as proved in respect of the individual case of delinquent officials of different levels of seniority, and the proposed quantum of punishment, would also as a result vary, and would have to be based upon the charges proved against the particular concerned official.
29. Therefore, this Tribunal cannot venture to undertake the process of re-appreciating the evidence adduced in a disciplinary enquiry by putting itself in the shoes of either the numerous Enquiry Officers, or of the numerous Disciplinary Authorities, or of the numerous Appellate Authorities, who took decisions based upon the quantum of guilt that could be established in each of the disciplinary enquiry case separately, based upon the charges as framed and proved against the many concerned delinquent officials.
30. In his book on Administrative Law, at page 339, Sir William Wade has summarized the powers of judicial review as follows:-
The doctrine that the powers must be exercised reasonably has to be reconciled with no less important doctrine that the Court must not usurp the discretion of the public authority which Parliament appointed to take the decision. Within the bounds of legal reasonableness is the area in which the deciding authority has genuinely free discretion. If it passes those bounds, it acts ultra vires. The Court must, therefore, resist the temptation to draw the bounds too tightly, merely according to its own opinion..If the decision is within the confines of reasonableness, it is no part of the Courts function to look further into its merits.
31. It is also not the case that in this case that we have to necessarily disregard the Wednesbury Principles, and go by the principle of proportionality, which flows from the Continental Principles of Civil Law, and does not flow from the U.K. Common Law Principles, on which all Indian Laws and Jurisprudence is based. In regard to the principle of Proportionality, however, in Om Kumar and Ors. v. Union of India (2001 (2) SCC 386), the Honble Apex Court had observed, inter-alia, as follows:
"The principle originated in Prussia in the nineteenth century and has since been adopted in Germany, France and other European countries. The European Court of Justice at Luxembourg and the European Court of Human Rights at Strasbourg have applied the principle while judging the validity of administrative action. But even long before that, the Indian Supreme Court has applied the principle of "proportionality" to legislative action since 1950, as stated in detail below.
By "proportionality", we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least-restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the purpose of the administrative order, as the case may be. Under the principle, the court will see that the legislature and the administrative authority "maintain a proper balance between the adverse effects which the legislation or the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were intended to serve". The legislature and the administrative authority are, however, given an area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the court. That is what is meant by proportionality.
xxx xxx xxx xxx xxx The development of the principle of "strict scrutiny" or "proportionality" in administrative law in England is, however, recent. Administrative action was traditionally being tested on Wednesbury grounds. But in the last few years, administrative action affecting the freedom of expression or liberty has been declared invalid in several cases applying the principle of "strict scrutiny". In the case of these freedoms, Wednesbury principles are no longer applied. The courts in England could not expressly apply proportionality in the absence of the convention but tried to safeguard the rights zealously by treating the said rights as basic to the common law and the courts then applied the strict scrutiny test. In the Spycatcher case Attorney General v. Guardian Newspapers Ltd. (No.2) (1990) 1 AC 109 (at pp. 283-284), Lord Goff stated that there was no inconsistency between the convention and the common law. In Derbyshire County Council v. Times Newspapers Ltd. (1993) AC 534, Lord Keith treated freedom of expression as part of common law. Recently, in R. v. Secy. Of State for Home Deptt., ex p. Simms (1999) 3 All ER 400 (HL), the right of a prisoner to grant an interview to a journalist was upheld treating the right as part of the common law. Lord Hobhouse held that the policy of the administrator was disproportionate. The need for a more intense and anxious judicial scrutiny in administrative decisions which engage fundamental human rights was re-emphasized in R. v. Lord Saville ex p (1999) 4 All ER 860 (CA), at pp.870,872) . In all these cases, the English Courts applied the "strict scrutiny" test rather than describe the test as one of "proportionality". But, in any event, in respect of these rights "Wednesbury" rule has ceased to apply.
However, the principle of "strict scrutiny" or "proportionality" and primary review came to be explained in R. v. Secy. of State for the Home Deptt. ex p Brind (1991) 1 AC 696. That case related to directions given by the Home Secretary under the Broadcasting Act, 1981 requiring BBC and IBA to refrain from broadcasting certain matters through persons who represented organizations which were proscribed under legislation concerning the prevention of terrorism. The extent of prohibition was linked with the direct statement made by the members of the organizations. It did not however, for example, preclude the broadcasting by such persons through the medium of a film, provided there was a "voice-over" account, paraphrasing what they said. The applicant's claim was based directly on the European Convention of Human Rights. Lord Bridge noticed that the Convention rights were not still expressly engrafted into English law but stated that freedom of expression was basic to the Common law and that, even in the absence of the Convention, English Courts could go into the question (see p. 748-49).
".....whether the Secretary of State, in the exercise of his discretion, could reasonably impose the restriction he has imposed on the broadcasting organisations"
and that the courts were "not perfectly entitled to start from the premise that any restriction of the right to freedom of expression requires to be justified and nothing less than an important public interest will be sufficient to justify it".
Lord Templeman also said in the above case that the courts could go into the question whether a reasonable minister could reasonably have concluded that the interference with this freedom was justifiable. He said that "in terms of the Convention" any such interference must be both necessary and proportionate (ibid pp. 750-51).
In the famous passage, the seeds of the principle of primary and secondary review by courts were planted in the administrative law by Lord Bridge in the Brind case (1991) 1 AC 696. Where Convention rights were in question the courts could exercise a right of primary review. However, the courts would exercise a right of secondary review based only on Wednesbury principles in cases not affecting the rights under the Convention. Adverting to cases where fundamental freedoms were not invoked and where administrative action was questioned, it was said that the courts were then confined only to a secondary review while the primary decision would be with the administrator. Lord Bridge explained the primary and secondary review as follows:
"The primary judgment as to whether the particular competing public interest justifying the particular restriction imposed falls to be made by the Secretary of State to whom Parliament has entrusted the discretion. But, we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make the primary judgment."
[Emphasis supplied].
32. Since India is not bound by the European Convention of Human Rights & other European Treaties, which have prompted the Courts in U.K. to occasionally import and apply the Civil Law principle of Proportionality, we cannot, in Indian jurisprudence, bury forever the Wednesbury Principles, flowing out of the Common Law principles prevalent in India, unless any International Treaty obligations compel or oblige us also to do so.
33. Coming back to the principles as enshrined in Common Law, in Tata Cellular v. Union of India (1994) 6 SCC 651 at pp. 679-80), Indian Express Newspapers Bombay (P) Ltd. v. Union of India (1985) 1 SCC 641 at p.691), Supreme Court Employees' Welfare Assn. V. Union of India (1989) 4 SCC 187 at p. 241) and U.P. Financial Corpn. V. Gem Cap(India) (P) Ltd. (1993) 2 SCC 299 at p. 307), the Honble Apex Court has observed that while judging whether the administrative action is "arbitrary" under Article 14 (i.e. otherwise than being discriminatory), the Honble Apex Court has confined itself to the Common Law Wednesbury Principles review always, by stating as follows:-
The principles explained in the last preceding paragraph in respect of Article 14 are now to be applied here where the question of "arbitrariness" of the order of punishment is questioned under Article 14.
xxx xxx xxx xxx xxx Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as "arbitrary" under Article 14, the court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, and such extreme or rare cases can the court substitute its own view as to the quantum of punishment."
[Emphasis supplied]
34. According to the distillate of the wisdom of the judgments cited in the above paragraph, in the case of deciding matters connected with punishments imposed after a disciplinary enquiry, this Tribunal cannot apply the principle of proportionality, and has only to test the reasonableness of the administrative decisions on the basis of the tests of Wednesbury Principles, as a secondary reviewing authority, as is permitted under the Common Law.
35. In B.C. Chaturvedi v. Union of India and Others (1995(6) SCC 749), the Honble Apex Court had observed as follows:
"A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
[Emphasis supplied]
36. In Union of India and Anr. v. G. Ganayutham (1997 [7] SCC 463), the Honble Apex Court had very aptly summed up the position relating to the applicability of the Civil Law principle of proportionality viz-a-viz the Common Law Wednesbury Principles, in paragraphs 31 and 32 of its judgment, which read as follows:
"The current position of proportionality in administrative law in England and India can be summarized as follows:
(1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator. This is the Wednesbury (1948 1 KB 223) test.
(2) The court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational _ in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU (1985 AC 374) principles. (3)(a) As per Bugdaycay (1987 AC 514), Brind (1991 (1) AC 696) and Smith (1996 (1) All ER 257) as long as the Convention is not incorporated into English law, the English courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done.
(3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.
(4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.
(4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of "proportionality" and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article 14.
[Emphasis supplied]
37. Thus, it is clear that even in the case of administrative action affecting fundamental freedoms under Articles 19, 21 etc. of the Constitution being involved, the question of Indian Courts obligation to apply the Civil Law principle of Proportionality had been left open by the Honble Apex Court, to be decided later in an appropriate case, where such action is alleged to offend fundamental freedoms. The present O.A. before us is certainly not a case falling in that category.
38. In this case also, different delinquent Government officials of different levels of seniority had been proceeded against on the basis of different Articles of Charges, which would obviously have been different in each case on account of the work responsibility assigned to each of those officials. The Disciplinary Authority, the Appellate Authority and the Revisional Authority also would also have been different in the case of the different delinquent Government employees. During the arguments of the case, the learned counsel for the applicant did not deny the signatures below the ledger of test check conducted as recorded by the applicant in the measurement book, photocopies of which were submitted by him as pages 147 to 163 of the paper book of the OA. Therefore, the applicant cannot wash his hands off, and state that he was unaware that there was no requirement for the supply of 4834 mtrs of PVC Pipes, about which he has certified to have test checked 20% of its installation, while it was never installed.
39. After the orders were reserved, the learned counsel for the applicant submitted further documents on 13.09.2012, to try to show that the estimates were prepared by the Junior Engineer, and were only countersigned by the applicant as the Section Engineer, along with all the relevant drawings, but even these documents do not go to show that the applicant was unaware of the supply of the PVS Pipes being in excess of the required quantity, which had led to the payment of excess amount to the contractor concerned, and against which excess supply, the Contractor had even won the Arbitration case before the Arbitral Tribunal, and later the Honble Delhi High Court. The applicant cannot therefore be allowed to wash his hands off for the loss suffered by the respondentRailways.
40. The applicant also sought shelter behind the orders of this Tribunal dated 3.2.2009 in OA No.1756/2008 with MA No.1775/2008 with OA No.1757/2008 Shri Rahul Gupta vs. Union of India and others in which it was held that the CVC prescribed time limits for processing of cases to its circular dated 23.5.2000 and reiterated by DOPT Memo 16.2.2004 should be adhered to. After having gone through the cited judgment in detail, we find that the Bench had that day directed to quash and set aside the Memorandum of charge dated 25.7.2008, and had directed that the applicants name to be considered for promotion, as his name had already been recommended by the DPC for promotion from 31.7.2008, when his junior was promoted. On a careful perusal of the judgment it is seen that the Bench had that day held the CVC guidelines within the time limits prescribed to be applicable only because the applicant had in the meanwhile been considered by the DPC, and his name had been recommended for promotion, and the Bench had gone by the ratio laid down by the Apex Court that the Tribunal/Court should balance the factors in favour of the applicant and the factors in favour of the respondents and then decide the issue.
41. We have also balanced the factors in favour of the applicant and the factors in favour of the respondents in the instant case, but we find that the delay in finalizing the disciplinary proceeding was occasioned on account of the arbitration proceedings, and the connected Court cases being pending before the Honble High Court, and therefore, the applicant before us cannot be allowed to take shelter behind that delay and to take the benefit from the same.
42. Therefore, none of the grounds for reliefs as pleaded by the applicant in the prayer portion of the OA survives, and the OA is, therefore, rejected, but there shall be no order as to costs.
(A.K. Bhardwaj) (Sudhir Kumar) Member (J) Member (A) cc.