Central Administrative Tribunal - Chandigarh
Rajinder Singh vs Chandigarh Administration And Anr. on 2 July, 2007
Equivalent citations: 2008(2)SLJ66(CAT)
ORDER Jasbir S. Dhaliwal, Member (J)
1. This O.A. has been filed by the applicant against his removal from service.
2. Applicant joined service in the Printing and Stationery Department of U.T. Chandigarh as a Mazdooron 3.6.1986. Later on, he was promoted to the post of Junior Technician. He claims that for 18 years, he had unblemished service record. In July 2001, due to unavoidable family circumstances, he proceeded on leave. On 17.11.2001, he applied for a Casual Leave. Then he suffered depression and could not join duties. When treatment by doctors did not help, he started taking Ayurvedic treatment from his family 'vaid' in village. The department issued him numerous letters to resume duty but he was not in a position to see those letters or to join duties. Such state of his mind was unintentional and beyond his control. Respondents held inquiry and for this very small lapse, imposed upon him heavy penalty of removal from service vide order dated 22.12.2003. In this connection, respondents have taken into account his past service record. As per law, punishment cannot be awarded on the basis of past record. In appeal, he explained the whole position that his conduct, in question, was beyond his control. He also begged his pardon and assured of good conduct in future. He was afforded personal hearing but, ultimately, the Appellate Authority, without considering the points raised in appeal, rejected his appeal, summarily. In the case of one Sh. Pardeep Kumar, Helped who was also removed from service like him, a lenient view was taken by the Appellate Authority and he was taken back in service. Discriminatory treatment has been meted out to him. Respondent No. 2 has also directed to charge penal rent for the Govt. accommodation allotted to him. He has no other house to give shelter to his family. He is only 36 years in age and due to his removal from service, would be unable to Teed his family.
3. On the above pleadings, applicant has prayed that the impugned order of his removal from service, Annexure A-l dated 22.12.2003, as well as the appellate order, Annexure A-3 dated 28.6.2004, may be quashed and set aside and a direction may be issued to respondents to review his case for awarding him lesser punishment than that of removal from service.
4. Respondents have contested the O.A. They have stated that applicant applied for one day casual leave on 17.11.2001. The application was returned to him as no casual leave was due to him as per his leave account. Still he proceeded on leave and remained absent thereafter. They sent him numerous letters under Registered/A.D. post which must have been received by him. His continued absence was in contravention of Rule 3 of the Govt. Employees (Conduct) Rules, 1966. This rendered him liable for disciplinary action under Punjab Civil Services (Punishment and Appeal) Rules, 1970. Accordingly, he was charge-sheeted under Rule 8 of the said rules. Charge sheet was also sent to him at his residential address through Registered/A.D. post. Inquiry was entrusted to a retired IAS officer who summoned him through various notices. However, neither he put in appearance, nor submitted any defence. Inquiry was held ex parte and the charges against him stood proved. Inquiry report was also sent to him under registered cover to give him an opportunity to adduce defence. Still, he did not care to defend himself. A notice was published in the newspaper, copy of which was also sent to the applicant through Registered Post. Thereafter, opportunities of personal hearing, on 12.12.2003 and 16.12.2003, were given to him and letters in this regard were sent at his residential address by hand. One such letter was received by his mother. He did not appear for personal hearing. When all efforts failed and his absence for 2 years, 1 month and 6 days stood proved, the Disciplinary Authority, also keeping in view his past record, awarded him the penalty of removal from service. The order was sent to his residential address. Applicant made an appeal against the same. The Appellate Authority, after hearing him in person, upheld the penalty order and dismissed the appeal. The impugned orders have been passed perfectly in accordance with law. Respondents have enumerated as many as 10 penalties of censure, withholding of next increments, deferment of increments, reduction of pay by some stages etc. etc., imposed upon the applicant earlier. They plead that this was not his first misdemeanor. He was incorrigible and habitual of remaining absent wilfully and un-authorisedly. Applicant has file a replication.
5. We have heard Mr. J.R. Syal, Id. Counsel for the applicant and Mr. H.S. Sullar, Id. Counsel for respondents and have examined the record.
6. On going through the pleadings and documents on record of this case, we would not hesitate to record that plea made by the applicant that he suffered depression and could not respond to the letters issued by the respondents or to join duty, does not inspire confidence of the Court. It appears to be a story, concocted by the applicant while facing the order of removal from service and the probable consequences thereof. There is not an iota of evidence on record which may bring out that he was suffering from some ailment. His plea that when treatment given to him by doctors did not work, he started taking treatment from a village 'Vaid' is unbelievable. In this view of the matter, the O.A. deserves to be dismissed straightaway.
7. The other plea of the applicant is that the penalty of removal from service is disproportionate to the guilt proved against him and the respondents have imposed this heavy penalty because they got prejudiced by his post service record, which is against law.
8. The facts relating to absence of the applicant and holding of inquiry against him are not disputed. Applicant has also not disputed the proceedings held against him on any grounds that these were vitiated for some reason. In absence of any dispute in this regard, we take that the inquiry against him was held as per rules and the law.
9. Regarding the plea that for imposing punishment upon him, respondents could not have taken into account his past service record, applicant placed reliance on a decision of the Punjab and Haryana High Court in the case titled Pritam Singh v. The Punjab Roadways, Through the Collector, Ferozepur 1993(3) RSJ 433. We have gone through this decision and find that no benefit can be drawn by the applicant from the same. It is settled law that facts of each case are required to be appreciated separately. Judgments are sometimes rendered on peculiar facts of each case. There can be no dispute with regard to the proposition of law that punishment cannot be imposed on the basis of past conduct alone. However, in the present case we find that the misconduct of unauthorized absence of the applicant for a considerably long period, from 17.11.2001 onwards, was duly proved. It is at the stage of deciding about the quantum of punishment that the Competent Authority took into account his past service record. Under rules and the Law, there is an obligation imposed on the Disciplinary Authority to take into consideration the past service of the employee and that would include his conduct during the past service, for deciding upon the penalty. If the past conduct is found to be good, lesser punishment can be chosen by the Disciplinary Authority. However, if the conduct of the delinquent in the past is not good and numerous punishments have been imposed upon him, as in the case of the present applicant, it would be nothing but mockery of the principles of natural justice if the Competent Authority is called upon to give a fresh show cause notice to such delinquent official for choosing the quantum of punishment. After 42nd Amendment in the Constitution of India, law is well settled that repeated show cause notices are not to be given before imposition of penalty. On completion of inquiry, the delinquent is required to be served with the inquiry report to give him an opportunity to represent. The Disciplinary Authority would be failing in its duty and would commit an illegality if on the proven misconduct it decides to impose lesser punishment on the delinquent without taking into account his past conduct. In our opinion, the Competent Authority is, in fact, duty-bound to consider the past service of the employee to decide the quantum of punishment. Under law laid down by the Hon'ble Supreme Court in Punjab State Civil Supplies Corporation Ltd., Chandigarh and Ors. v. Narinder Singh Nirdosh 1997(1 ) SC SLJ 579, the Disciplinary Authority is empowered to impose the punishment appropriate to the situation on the basis of the magnitude of the misconduct. The magnitude of the misconduct in the present case was that the Competent Authority formed a view that the applicant was an incorrigible employee. Even the proven charge of absence was sufficient for imposition of the penalty chosen, without anything else.
10. The judgment cited by the applicant is based on a judgment of the Hon'ble Supreme Court in the case of State of U.P. v. Harish Chander . In that case the Apex Court had considered that aspect of the case where Superintendent of Police had conveyed to the charged official that the inquiry report against him was being sent to the DIG who would decide upon the penalty by taking into consideration his past service/conduct. The official had challenged the order of the Disciplinary Authority on the ground that his past conduct could not be taken into account without issuing a show cause notice to him. In the facts of that case, Hon'ble Supreme Court observed that it was sufficient that he had been duly intimated by the Superintendent of Police that the DIG would be taking into account his past conduct as well and nothing more was required to be done. The Apex Court reversed the judgments of the High Court and the Lower Court on the ground that there was no need of serving a show cause notice further, The judgment did not lay down that after recording findings in a disciplinary case and after supplying a copy of the inquiry report and giving an opportunity to the delinquent to represent, the Disciplinary Authority should give a further show cause notice that it will be taking into account his past proven misconduct. In our considered opinion, this cannot be the position under law. Decision about the suitability of an official to be retained in service is always to be kept in mind while choosing the quantum of punishment to be imposed and consideration of past service as well as past conduct of the delinquent would be essential. We may observe here that the contention raised, in fact, relates to arena of criminal jurisprudence. In criminal trials, even if slips of earlier punishments imposed on a particular accused are annexed with the challan (report put in Court), those cannot be taken into account until the Court has considered the entire evidence to record its findings as to whether procecution has been successful in proving the charge framed against that particular person in that case. Once that is recorded, thereafter, the accused is put to the evidence of his earlier convictions. In our opinion, in administrative law the position would, in fact, be different from it where the administrator is to see first as to whether the charges framed against the official have been proved, or not. It would take care of all essential steps, including supply of the inquiry report, an opportunity given to the charged official to make a representation etc. Once the authority comes to the conclusion that the charges are proved, he has to consider as to what quantum of punishment should be imposed on him considering the nature of the charges proved and also the earlier conduct of such Government servant. This is an obligation imposed on the Competent Authority for keeping the administration clean and for maintenance of discipline. It is his duty to consider all these aspects before choosing the quantum of punishment and for this the past service would be most essential issue. If the employee had very good conduct in the past, he is not to be harshly treated and lesser punishment can be chosen. Otherwise, if his past conduct has not been good, exemplary punishment can be chosen for him.
11. The principles of natural justice, which have come to stay as permanent part of our jurisprudence, have been developing since the country became independent. At one time a view was held that if any part, falling under the meaning of principles of natural justice, has not been complied with, the decision taken by the Competent Authority should be declared illegal without looking into any other thing. Thereafter, the Courts took a view that it is not a ritual or incantation of certain 'mantras' which must be resorted to in each and every situation. Principles of prejudice, if any, caused to the employee by non-observance of principles of natural justice is an essential element for taking a decision in a particular case. It was held that theory of reasonable opportunity and principles of natural justice has been evolved to upheld the rule of law and to assist the individual to vindicate his rights. They are not incantations or rites to be performed in all and sundery occasions. Whether, in fact, prejudice has been caused to the employee or not on account of denial to him of such opportunity, whatsoever, has to be considered on the facts and circumstances of each case. If giving of another opportunity to such official would have not different consequence, it would be a perversion of justice to permit the employee to get free of the penalty imposed. This was the view expressed by a Constitution Bench of the Hon'ble Supreme Court in the case of Managing Director, ECIL v. B. Karunakar and Ors. . In another case of State Bank of Patiala v. S.K. Sharma , this principle of natural justice was further examined and expanded on the principle of audi alterant partem where some violation of procedural provision is seen the test of prejudice, if any, caused will have to be applied. To determine as to whether the employee did not or did not have fair hearing, it was observed: "Justice means justice between both the parties. The interests of justice equally demand that the guilty should be punished and that technicalities and irregularities which do not occasion failure of justice are not allowed to defeat the ends of justice. Principles of natural justice are but the means to achieve the ends of justice. They cannot be perverted to achieve the very opposite end. That would be a counter-product exercise." Thereafter, the principles were laid down by the Court for one and all as to when interference should be done or not to be done. Applying the ratio of these two judgments, which are of the highest Court of the country, we are of the opinion that applicant was fully aware of the acts of proven misconduct in the past, particularly those in which he had been conveyed the punishment and other orders. On the other side, it was the duty of the Disciplinary Authority to deal with the official under the rules to do justice not only to him but to the administrative interests, for the sake of clean administration with discipline being maintained. On the one hand we record that even if the applicant had been asked regarding the acts of past proven misconduct, it would not have made any difference as the written orders against him and the acts of proven misconduct against him could not have been either wiped out or wished away by his reply. On the other hand administration would be adversely affected if on such a technicality the punishment imposed on the applicant is set aside.
12. In a most recent case of State of Manipur v. Y. Token Singh , the Court has further elaborated the principles of audi alteram partem to conclude that instead of going through a formality which ultimately may prove to be useless, even if in case some deviation has been made from the principles of natural justice, the Court will use its discretion in refusing to interfere on that ground of violation of principles of natural justice when it is of the view that no useful purpose is to be served even if opportunity is given to the employee, as demanded by him. After citing a number of judgments of the Apex Court and from the Books of Prof. D.H. Clarke of Canada, titled "Substance or Shadow", the Book by Foulkes, titled "Administrative Law", Book by Craig on Administrative Law and book by Smith and finally by an authority on administrative law, namely Mr. Wade, Edi. 1994, it has been held that Courts may not issue futile writs merely on the ground of violation of principles of natural justice. In the case, mentioned above, the Apex Court concluded: "We may, however, point out that even in cases where the facts are not all admitted or beyond dispute, there is a considerable unanimity that the Courts can in exercise of their discretion refuse certiorari... Mandamus... even though natural justice is not followed." In the facts of this case, for the reasons mentioned above, we choose not to interfere with the penalty imposed upon the applicant. The plea of the applicant is hereby rejected.
13. The second plea of the applicant is against the appellate order that he explained the whole position that the misconduct was beyond his control. He also begged his pardon and assured of good conduct in future. He was afforded personal hearing but, ultimately, the Appellate Authority, without considering the points raised in appeal, rejected it summarily. It is admitted case of the applicant that he committed a misconduct. He has not pleaded and argued violation of any principles of natural justice, rather, he admits that he was given an opportunity of hearing. On going through the appellate order, we find that it is factually wrong to say that the points raised by him in appeal were not considered. All the points mentioned by the applicant in appeal were noticed by the Appellate Authority in Para 5 of the order and in Para 6 it is recorded that applicant repeated the contents of the appeal during personal hearing and raised no new point. Under law, it is not necessary to record findings on each and every point raised in the appeal. What is required is that the Appellate Authority, with due application of mind has to agree or to disagree with the order passed by the Disciplinary Authority. In case of disagreement, it is necessary to record reasons. We find that the Appellate Authority in the case of the applicant agreed to the order passed by the Disciplinary Authority and confirmed the penalty imposed. The appellate order is found to be a detailed and speaking one and deserves to be upheld.
14. The next argument on behalf of the applicant is of discrimination vis-a-vis one Sh. Pardeep Kumar, Helper, who was also removed from service like the applicant, but in his case a lenient view was taken by the Appellate Authority and he was taken back in service, whereas, in the case of the applicant, his appeal has been rejected. Ld. Counsel for the applicant has placed reliance on a decision of the Delhi High Court in the case titled P.D. Gupta v. Reserve Bank of India 1989(2) RSJ 377.
15. The facts of the case of Pardeep Kumar are not on record of this case. Moreover, as already observed, each disciplinary case has its own peculiar facts and it is within competence of the Disciplinary/Appellate Authorities to decide with due application of mind which penalty under the rules in a particular case should be imposed. If in the case of Pardeep Kumar the Appellate Authority had taken a lenient view and had ordered to take him back in service, that does not mean that the said authority has necessarily to take the same view in the case of the applicant. In the case relied upon by the Id. Counsel in this regard, the delinquent employees, including the petitioner therein, were charge-sheeted on the same charges which stood proved. Whereas the others were let off with minor penalty, the petitioner was dismissed from service. It was in these facts and circumstances that the Court had held that there was no reason as to why a similar view should not have been taken in respect of the petitioner. This authority does not apply in the case of the applicant where the applicant is claiming similar treatment to a person who was penalized/removed from service on different set of charges.
16. The last argument advanced by the Id. Counsel for the applicant is that the penalty imposed upon the applicant is excessive and disproportionate to the charge proved. He argues that in the case of Braj Kishore Singh v. The State of Jharkhand and Ors. 2005(3) ATJ 328 Jharkhand High Court quashed the order of compulsory retirement for absence of duty for 38 days, without sanctioned leave. Firstly, in that case the period of absence was too short as compared to the case in hand and, secondly, sufficient cause had been shown by the petitioner for absence from duty without leave. However, as already held, in the instant case the version of the applicant does not inspire confidence and appears to be a concocted story. No help, thus, can be drawn by the applicant from this ruling.
17. On the other side, Ld. Counsel for respondents argued that no interference by this Tribunal is needed in the quantum of punishment as it is not the first time that applicant committed this misconduct. On earlier occasions also he was punished for remaining absent from duty. In such circumstances, in the case of Ex. Constable Jagbir Singh v. State of Haryana 2007(1) RSJ 124, the Hon'ble Punjab and Haryana High Court refused to interfere in the penalty of dismissal from service. We find that this was a case of unauthorized absence for eight months from a disciplinary force like Commando Police but still the principle laid down by the Hon'ble High Court applies to the facts of the present case. Law is well settled that the Courts/Tribunals cannot sit in appeal over the findings recorded by the Inquiry Officer, as accepted by the Punishing Authority, Appellate Authority and the Revisional Authority. In this regard, reliance is placed on a decision of the Hon'ble Supreme Court in the case of B.C. Chaturvedi v. Union of India . It has, repeatedly, been held by the Apex Court that Courts/Tribunals would leave the question of 'quantum of punishment' to the discretion of the Administrative Authorities and the same cannot be interfered with unless it is found to be totally perverse or to be so disproportionate that it is shocking to the judicial conscience of the Court. Reference is being made to a few judgments on this aspect, as given below:
(i) Union of India v. Parma Nand ;
(ii) State Bank of India v. Samerendra Kishore Endow 1994 SCC (L&S) 687; and
(iii) Union of India and Anr. v. G. Ganayuthum 1998(2)SLJ 102(SC) : 1997 SCC (L&S) 1806.
Further, as already observed, applicant has not disputed the procedure of inquiry proceedings held against him. He has not alleged any violation of principles of natural justice. Rather, it is his own case that he committed misconduct and begged to be pardoned for the same. Regarding quantum of punishment, we do not consider it to be unconscionable so as to warrant any interference and, on the contrary, are inclined to agree with the same keeping in view his past conduct
18. In view of the above discussion, we find no merit in the present O.A. It is, accordingly, dismissed.