Central Administrative Tribunal - Kolkata
Binita Mitra vs S E Railway on 15 July, 2022
a 7 ; O 1 0.A. 546 of 2021 CENTRAL ADMINISTRATIVE TRIBUNAL CALCUTTA BENCH, KOLKATA (Through Audio/Video conferencing) -0.A./350/00546/ 2021 a ec rearh a . - wet 's a : Coram : Hon'ble Ms. Bidisha Banerjee, Judicial Member Hon'ble Dr. N. Chatterjee, Administrative Member smt, Binita Mitra, Wife of Sanjeev Mitra, Aged about 56 years, Working for gain as FA & CAO/T, South Eastern Railway, Garden Reach, Calcutta 700043, Residence at Flat 1C, Moni Garden Phase Il, 1773 Madurdaha, Kolkata 700 107. soveneaees Applicant. Versus 1. The Union of India, Through the Secretary, Rail Railway Board, Rail Bhavan, Raisina Road, New Delhi 110001. 2. The Union of India, . Service through the General Manager, South Eastern Railway, Garden Reach, Calcutta 700043. 3. The Director, Railway Board, Rail Bhavan, Raisina Road, New Delhi -- 110001. 4, The Financial Commissioner Railway Board, Rail Bhavan, New Delhi 110001. _ 5. The Chief Personnel Officer, South Eastern Railway, Garden Reach, Calcutta -- 700043. 6. The Principal Financial Adviser, South Eastern Railway, Garden Reach, Calcutta -- 700043. seteetenteees Respondents, a B 2 0.A. 546 of 2021 For the applicant : Mr. M.P. Dixit, Counsel Mr. A.K. Khan, Counsel For the respondents : Mr. K. Sarkar, Counsel Date of Order: (S. 22- "ORDER
Per : Bidisha Banerjee, Judicial Member The applicant is an officer of Indian Railway Accounts Service (IRAS), 1986 Examination Batch, who joined in service on 18.04.1988 and is presently working as. Financial Advisor & Chief Accounts Officer, South Eastern Railway/Construction, Kolkata. She was chargesheeted on 27.3.2015. Aggrieved with a penalty order and consequent order of the Appellate Authority, this.
application has been preferred to seek the following reliefs:
"8.i) That Your Lordships may pleased to quash and set aside the Railway Board's order dated 10.04.2019 as contained in Annexure A/4 issued by the Disciplinary Authority whereby penalty of "Reduction by two stages for one year with cumulative effect" has been imposed upon the Applicant.
fii) That Your Lordships may further be pleased to quash and set aside the Railway Board's order dated 08.02.2021 as contained in Annexure A/6 issued by the Appellate Authority under which the penalty imposed by the Disciplinary Authority has been modified to the "Reduction of pay by one stage for one year with cumulative effect".
(iii) That Your Lordships may further be pleased to declare the Charge Memorandum dated 25.03.2015 issued by the Railway Board including the entire Disciplinary Proceeding and the Report of Inquiry Officer dated.
27.03.2018 as contained in Annexure A/1 and A/2 respectively as null, void, ab initio wrong.
(iv) That Your Lordships may further be pleased to direct/command the Respondents to grant all consequential benefits in favour of the applicant on account of quashing of the punishment orders. .
(v) That Your Lordships may further be pleased to cost of the proceeding and or pass such other or orders as to your Lordships may seem fit and proper for which applicant is legally entitled to."
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3. The defect in the conclusion of the enquiry officer, as pleaded by the applicant are expressed as under:
"1.(i) The Article of charge no. | states that Smt. Binita Mitra with an ulterior_motive_unofficially engaged Smt. Krishna Sen, Sr. SO(A) of -- CAO/Works/HQ/ER, to function as_invigilator_in the written examination conducted on 23.09.2012 without any prior information to the paper setter- cum-selection, conducting officer and, thus, violated the quidelines.
(ii) "The Inquiry Officer's conclusion is that CO had obviously reduced SW-1 (a meek and submissive promotee officer at the fag end of his railway career) to function as a mere spectator. Just like the senior most railway officer present takes charge at an accident site as OC (Officer Commanding) site, CO became the OC of the said written exam on 23 September 2012 SW-
1 did not have the perspicacity to call a spade and speak out against his vastly superior & senior officer CO. Accordingly CO had her way in getting SW-4 to invigilate, unauthorizedly. Charge-l is substantiated."
(iii) Submissions raised during departmental proceeding by the applicant:- "That the Inquiry Officer_has failed to bring any evidence whether documentary or oral to prove the allegations that the applicant has engaged Smt. Sen with ulterior motive."
"The applicant's decision to direct Smt. Sen to remain in present in the examination hall, was a prudent decision in the interest of female candidates who appeared in the examination which instilled confidence in the female candidate."
"Smt. Sen during cross examination admitted that she was not specifically asked to invigilate, which clears the remaining confusion but such statement has been given a go-bye.
The Inquiry Officer has failed to justify how such affirmative action can be labelled as a misconduct.
Another fallacy is that the Inquiry Officer has failed to point out the provisions/Rules/Guidelines prohibiting such officers to engage official for duties in the examination hall in the case of exigencies.
The_ categorical statement _of Smt. Sen regarding no_malpractices -- committed during the examination, was deliberately not _taken_into consideration.
Further, there_is no evidence corroborating any .malpractices, therefore, the entire allegation is farce and concocted.
The statement of 5.W.5 and _S.W.6 regarding non detection of malpractices holds water but that has deliberately been ignored by the Inquiry Officer.
(iv) The Inquiry Officer has not recorded his findings in objective manner.
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(v) Therefore, the Inquiry Officer's report is perverse, sans objectivity, full _ of biasness and subjectivity which stands vitiated in the eyes of law and on facts as well.
(vi) Despite request, Chief Vigilance Inspector Shri A.K. Jana, was_not called as court witness despite request made vide letter dated 17.02.2017. His testimonial was very important_as_ he was present during the entire examination held on 23.09.2012, he was nominated by the Vigilance Branch and he signed a joint report declaring the fact that examination had been held. This shows that the issue regarding finding guilt of the applicant was premeditated, prejudged and predetermined and only a sham, cosmetic and pretence of proceeding was given whereas, the guilt of the applicant has already been predecided, thereby rendering the entire proceeding vitiated in law and on facts as well.
(vii) Perversity in the order of the Disciplinary Authority :- The Disciplinary Authority in the impugned order was pleased to hold in paragraph no.4.4, "the charges leveled allude to ulterior motive, ill motive, mala fide intention or undue interference in the 4 Articles of Charges. Ido agree with the C.O. 's allegations that none of these have come out to be conclusively proved as most of findings on there aspects are based on hearsay. But again, no hard evidence is needed to support these charges. What is needed is to show the actions with a high probability to leading to these charges". Such a contradiction cannot be all inclusive in a reasoned | order. Further, the Disciplinary Authority has conclusively held that the motive is not important by stating, "irrespective of the motive or otherwise" the entire crux of allegation of the applicant unofficially engaging someone with ulterior motive, stands nullified. Therefore, the Disciplinary Authority has incorrectly held the charges proved only on the basis of conclusion arrived at by the Inquiry Officer. The Inquiry Officer has not proved nor arrived at the conclusion that the applicant's actions were not in conformity with guidelines.
Hence, the Disciplinary Authority has made error of record and has not applied his independent mind. He has not cared to look into the fact whether such charge has conclusively and substantially been proved on the basis of preponderance of probability, though when there is no nexus between the facts and the evidences then even the principle of preponderance of probability is not applicable in the present case. The Disciplinary Authority has virtually over stretched _the principles of preponderance of probability without even examining that whether the said conclusion arrived at is attracted on the principles of preponderance of probability or not.
The Disciplinary Authority has virtually abdicated his _role_as independent adjudicator and has acted as mere facilitator to the erring conclusions arrived at by the Inquiry Officer which per se is not permissible. Therefore, the charge is not proved objectively. Hence, the penalty imposed by the Disciplinary Authority is fit to be quashed and set aside.
(viii) Perversity in the order of the Appellate Authority: - The Appellate Authority has committed error of record by holding "DA commented that 5 0.A. 546 of 2021 CO did not bring any new point in her appeal for the charge leveled in Article - 1". The Appellate Authority is required to apply his mind on the impugned order of the Disciplinary Authority vis-a-vis the grounds raised in the appeal by the applicant. But the Appellate Authority abdicated his role by being swayed away by the considerations made_by the DA which is impermissible. Many grounds raised by the applicant.in the appeal have been ignored and on the basis of assumption, presumption, surmises.and: | -
conjectures, the guilt of the applicant has been proved in most subjective manner. Hence, the penalty imposed by the Appellate Authority is fit to be quashed and set aside.
2.(i) Article of charge No.Il is that despite having no provision for a Head of the Department to present in the Examination Hall, the said Smt. Binita Mitra was not only present in the Examination Hall, but, she also actively involved herself in the examination process, which is indicative of her ill _ motive and support to the malpractices in the said examination, due to which certain undeserving candidates could find place in the list of selected candidates.
(ii) The Inquiry Officer's conclusion:- CO has not been able to substantiate why all but one (SW-8) of the state witnesses would make 'wild allegations' about her being present in the examination hall. Let us not forget that (SW-1, SW-2 and SW-4 were handpicked and the personal choice of CO. Why? Because CO considered them to be reliable, dependable and __ loyal to her. These individuats, chosen by her would not report on any of the malpractices by CO. And verily, the malpractices committed by CO were not reported by SW-1, SW-2, SW-3 and SW-4 they got substantiated through the vigilance investigation. Considering the aforementioned circumstances, | must conclude that Charge- II is established.
(iii) Submission raised during departmental proceeding by the applicant:- The Inquiry Officer failed to produce any Rule/ Guideline which prevents such officers to visit the examination hall for the purposes of seeing the smoothness in the process of examination. It is matter of surprise and shock that the applicant is alleged to have broken a Rule which is not in existence, thereby the allegation against the applicant is frivolous. In fact, it is the direction of the Railway Board that HOD should visit the examination hall to ensure discipline _and_decorum_in the examination hall, this substantial piece of direction was not considered by the Inquiry Officer. The Inquiry Officer has failed to consider the statement of S.W.4 which categorically contradicts the statement_of S.W.1. None of the witnesses. _ supported the case of the department qua allegation against the applicant.
- The Inquiry Officer has not cared to call for the statement of cash office staff as witnesses, much less examine the same who were instrumental in pasting the seat numbers in the examination hall and who were nominated for invigilation in the said examination. Further, the_Inquiry Officer deliberately ignored the statement of S.W.1, S.W.5 and S.W.6 by which _it was proved that the entire process of distribution of question papers was conducted by S.W.1 without any outside interference. The Inquiry Officer has not produced any documentary or oral evidence by which it_can_be proved that the applicant has engaged herself in sitting arrangements of 6 0.A. 546 of 2021 the candidates and the distribution of question papers. The bald allegation of Inquiry Officer regarding proximity with the husband of the applicant yielded favours to certain undeserving candidates, is frivolous and without any basis. Neither the Vigilance nor the Presenting Officer questioned regarding proximity of candidate with the husband of the applicant, rather the Inquiry Officer himself led to such vigilante action, which is not permissible in the eyes of law. It is the Presenting Officer who has to present the case but in no uncertain terms, the Inquiry Officer cannot fit into the role of Presenting Officer. The Inquiry Officer has failed to substantiate the allegation of malpractices as he was not able to detect any glaring defect in the answer sheet evaluation which clearly shows that_no malpractice_as alleged took place. Further, the glaring contradictions in the statement of witnesses have deliberately been overlooked by the Inquiry Officer.
(iv) Consideration by the Disciplinary Authority on presence of CO in examination Article-Il: - The issue vehemently alleged/ disputed is whether the C.O. was present throughout in the examination hall and why C.O. should not be there as HOD is that "lam in agreement with the contention of the C.O. that there is no bar on the HOD from going to the examination hall. | am_also of the same view but one needs to also have an overall perspective. As a norm HOD may go and do so often to examination halls, but only for_a_round or two. Very seldom is there continued presence especially in the beginning or even between in the overall terms there is nothing very authentically validated."
(v) Consideration by the Appellate Authority "The circumstances bring referred to are the fact that it was unusual, though not explicitly illegal for the CO to be present _and_that the re-examination reveals that_some candidates have done inexplicably well in the first examination. In view of the above, it is considered that Article -- Il of the Charge does not meet the required standard of proof." |
(vi) Perversity in the Inquiry Report: - The Inquiry Officer has not recorded his findings in objective manner. The allegations leveled aqainst the applicant have not been proved. Neither evidences nor witnesses lead to the substantiation of the charge aqainst the applicant. The Inquiry Officer travelled beyond his duties and collected materials and relied upon those materials which per se are impermissible. The Inquiry Officer has deliberately not considered the relevant piece of evidences and has malafidely and deliberately considered irrelevant piece of evidence, thereby leading the entire report, a perverse report which cannot be the basis for bringing home the charges against the applicant. The Inquiry Officer deliberately ignored the please taken by the applicant with the ulterior motive to harass the applicant. Therefore, the Inquiry Officer's report is perverse, sans objectivity, full of biasness and subjectivity which stands vitiated in the eyes of law and on facts as well. |
3.(i) Article of charge No. Ill that "The said Smt. Binita Mitra irreqularly allowed Shri A.K. Bhunia, the then SPO/RP/ER, to conduct coding (allocation of Dummy Roll Numbers) of Answer sheets of the said written examination not only in her chamber but also in her presence, apparently with a malafide intention to get access to Code Numbers of Answer sheets. Thus, RY | 7 O.A. 546 of 2021 she violated the confidentiality of coding of Answer scripts and indulged herself in vitiating the sanctity of the said selection."
(ii) Inquiry Officer's conclusion is that considering the preponderance of probability, CO, who had actively associated even with the seating arrangements in the exam venue, was surely and certainly, aware of also, it is very likely that CW-1 has shared the starting code, JS-1 with her, given their previous close acquaintance-in a conversation, even before carrying out the actual coding work in CO's chamber. Let us not forget that each one - of them, was subordinate to and expected to be personally loyal to CO. Like the conduct of the written examination, coding process_was_also undertaken in an atmosphere of 'business as usual'. Only after filing of the PIDR complaint (in January 2013) and resultant vigilance investigation, was the systemic rot, at the behest of and presided over by CO, shown the light of the day. It follows therefore, that the layout of CO's chamber, precise location of each of the individuals present while CW-1 did the coding, are, red herrings and irrelevant. So, considering the aforementioned circumstances, | must conclude that Charge-ill is established.
(iii) Submissions raised during departmental proceeding by the applicant: - The said allegation is absolutely ridiculous. Since coding of the answer sheet was done by the officer concerned in the chamber of the applicant which is the only chamber at the floor opened on the examination date due to which the concerned officers were allowed to do their work in the chamber. The Inquiry Officer forgot that onus to maintain secrecy of the coding process is upon the concerned officers and not upon the applicant. Now the Inquiry Officer statement that the applicant could have arranged for one of the other office room available on the same floor, clearly shows that the Inquiry Officer has travelled beyond his domain and his lacking of administrative acumen. This is to mention here that the Inquiry Officer failed to notice the fact that the Personnel Branch member himself came to the applicant's chamber, did not ask for any permission, just informed that he was going to do his confidential work and then proceeded to carry out his work confidentially, how could the applicant as a senior officer stop him at that stage and then start searching for a room keeping the entire process on hold. When the applicant was not informed about any such problem in advance, how she could arrange for a separate room. This shows malafide on the part of Inquiry Officer.
The issue is not whether the other persons shared codes in the room as much as whether he could have in C.0.'s room. In railway hierarchy juniors do not have the gumption to take a senior's room for granted or also --
- speak out outright. CO's defence does not touch the fact whether encoding © in her_presence was in order and why could she not have advised the concerned officer otherwise especially when C.O. was directly linked with -- the selection.
The main plea of CO is that Shri A.K. Bhunia conducted confidential coding in her chamber and in his case, it was upheld by UPSC in the appeal of Mr. Bhunia that the codes were not shared. It may be brought out here that Shri A.K. Bhunia is one of the co-accused in this case. Earlier, his appeal case was also received in the commission and the commission imposed a '
0.A. 546 of 2021 minor penalty of 'Censure' on him and his appeal was accepted to that extent. In view of the above, it is considered that CO can be considered responsible only to the extent that she allowed coding to be done in her chamber _& _in_her presence. But that this act of hers violated the confidentiality of coding of answer sheets is not well established. Moreover, no malafide could be proved against her. As such, it is held this Article of Charge as partly proved to that extent.
(iv) Perversity in the Inquiry Report: - The Inquiry Officer_has_not recorded his findings in objective manner. The allegations leveled against the applicant have not been proved. Neither evidences nor witnesses lead to the substantiation of the charge against the applicant. The Inquiry Officer travelled beyond his duties and collected materials and relied upon those materials which per se are impermissible. The Inquiry Officer has deliberately not considered the relevant piece of evidences and_has malafidely and deliberately considered irrelevant piece of evidence, thereby leading the entire report, a perverse re The Vigilance Report which _| port.
is the basis of memo_of charge, categorically asserts that no irrequlari ty was attributed on the part of Shri A.K. Bhunia, C.W.1. Despite this, fran hing of charge and holding the said charge _proved against the applicant _is_ preposterous, shows lack of independent application of mind, smacks of colourable exercise of power coupled with ulterior motive with the sole view to harass and implicate the applicant, which is improper, illegal arid arbitrary per se. Even UPSC did not find C.W.1 quilty of sharing codes with the applicant, despite then also, . penalizing the applicant for her presence only, shows some conspiracy hatched against her which is clear qut case of malafide on the part of department. UPSC categorically held that act of coding in presence of the applicant did not violate the confiden tiality of code as well as no malafide act on the part of the applicant was proved, then holding the said charge proved by the Inquiry Officer clearly established the fact that the impugned orders are erroneous and there are gra ve error of records.
(v) Perversity in the order of the Appellate Authority: - Despite holding the fact by the Appellate Authority, it|was upheld by UPSC in the appeal of Mr. Bhunia that the codes were not shared. It observed, it may be brought out here that Shri A.K. Bhunia is one of the co-accused in this case. Earlier, his appeal case was also received in |the commission and the commission imposed a minor penalty of 'Censure'|on him and his appeal was accepted to that extent". 3.9 In view of the above, it is considered that_CO can be considered responsible only to the extent that she allowed coding to be done in her chamber & in her presence. But this act of hers violated the confidentially of coding of answer sheets is not well established. Moreover, no malafide could be proved against her". Having observed_as such, the Appellate Authority has erroneously held the charge as partly proved. It is apparent that the Appellate Authority has shown total non application of mind and has arrived at the conclusion contrary to the facts narrated in the order, thereby rendering the entire charge non-est and present is the case of no evidence, therefore, the penalty fit to be quashed and set aside.
imposed by the Appellate Authority is 9 0.A. 546 of 2021
(vi) Perversity in the order of the Disciplinary Authority: - The Disciplinary Authority in the impugned order was pleased to hold in paragraph no.4.4, "the charges leveled .allude to ulterior motive, ill motive, malafide intention or undue interference in the 4 Articles of Charges. | do agree with the C.0O.'s allegations that none of these have ' come out to be conclusively proved as most of findings on these aspects are based on hearsay. But again, no hard evidence is needed to support these charges. What is needed is to show the actions with a high probability to leading to these charges". At one point of time, the | Disciplinary Authority has conclusively held that the charges have not been proved but still on the other point of time, the Disciplinary Authority held otherwise, such a contradiction cannot be all inclusive in a reasoned order.
Further, the Disciplinary Authority has conclusively held that "it is alright for the CO to state that onus to maintain secrecy in coding vested with the other officers". The Disciplinary Authority has now come up with new ground of allegation which. is different from the memo of charge as contained in Article of Charge No. Ill. The Disciplinary Authority is now - accusing the applicant that "CO should have displayed more diligence and transparency". The Hon'ble Supreme Court has held that if an employee does not meet the high expectations of the superiors then such not meeting up with the high expectation does not lead to charge of misconduct.
4.(i) Article of charge no.IV states, Smt. Binita Mitra being the panel approving Authority of the said selection irregularly directed Shri Ujjal Goswami, the then Sr. AFA/TA-II/ER and the member of the Selection Committee-cum- evaluator of the Answer scripts (both Hindi & English), to . meet her before submission of evaluated Answer scripts along with the tabulation statement, to the Personnel Branch. From the statement of the said Shri Ujjal Goswami, it is revealed that when he met the said Smt. Binita Mitra, she asked him to show the tabulation statement. The said Shri Ujjal Goswami has also stated that she was not only aware of the Code Numbers of certain candidates but she also desired to see the Answer scripts of 2 or3 candidates and when shown, she browsed through these Answer sheets. This action on part of the said Smt. Binita Mitra not only shows her undue interference in the process of selection, with an ulterior motive but is also in violation of the extant instructions.
(ii) Inquiry Officer's conclusion: - that CO had deliberately summoned | SW-2 before the decoding (and the SW-2 may not have revealed) to make sure that if required, the answer scripts of any particular candidates could be switched/substituted, as blank answer books were readily available at HQ. SW-2 may have maintained silence as if such an occurrence was revealed, he would have rendered himself liable for being awarded witha | stringent, severe disciplinary penalty, like dismissal/removal from railway -- service. So, reckoning the preponderance of probability, the version of CO is implausible. | must conclude that Charge-IV is established.
(iii) Submissions raised during departmental proceeding by the applicant: - The Inquiry Officer has deliberately failed to consider the _ contradictory statement made by S.W.2 at different stages of enquiry. The Inquiry Officer has not established the fact that what benefit the applicant 10 0.A. 546 of 2021 would have derived once the tabulation sheet has already been marked in indelible ink. The inquiry Officer has unnecessarily twisted the statement and has elongated the statement too far only to implicate the applicant, which is not permissible. The Inquiry Officer has deliberately failed to consider the fact that S.W.8 mentioned that he had been induced and tortured by S.W.9 to speak against the applicant which shows a conspiracy hatched against the applicant. . .
It is observed that the CO, in her defence has denied meeting the evaluator and has stated that she had no reason/ motive to call the evaluator. DA, in response to the appeal preferred by the CO with regard to this Article of Charge has commented that this Article of Charge is based solely on the statement_of evaluator Shri Ujjal Goswami_and_no_ other evidence is available DA further contended that since the charge against the CO of gaining access to the codes of answer sheets is not well established, the Article' of Charge IV_aqainst_CO loses its relevance. After all, without knowledge of codes, CO could not influence evaluator. Once again the act of meeting the evaluator is unusual and thus held Article IV partly proved.
(iv). Perversity in the Inquiry Report: - "The Inquiry Officer deliberately chose the depositions of the witnesses with bias and in a discriminate manner so as to suit his preferences, while rejected the allegation of S.W.8 qua_having been coerced by S.W.9 whereas, and readily and willingly accepted the allegation of S.W.2 qua knowledge of the applicant." The Inquiry Officer acted in hostile discrimination which is unjust, unreasonable and unfair and contrary to the settled norms of departmental proceeding. The Inquiry Officer as well as the Disciplinary Authority held that on the notion of preponderance_of probability, the charge is proved whereas, admittedly there is neither any evidence nor any witness nor any motive which could be attributed to the applicant.
One foundational fact that supports the applicant that UPSC_noted that the charge of gaining access to the codes has not been established, therefore, it is ridiculous to frame the applicant for influencing the evaluator without the codes.
Further, there is no material to support the statements of S.W.2, therefore, even the iota of preponderance of probability cannot be applied in the present case then holding the said charge proved by the Disciplinary Authority and holding the said charge partly proved by the Appellate Authority clearly established the fact that the impugned orders are erroneous and there are grave error of records.
(v) Perversity in the order of the Disciplinary Authority: - The Disciplinary Authority in the impugned order was pleased to hold in . paragraph. no.4.4, "the charges leveled allude to ulterior motive, ill motive, malafide intention or undue interference in the 4 Articles of Charges. | do agree with the C.O.'s allegations that_none_of these have come out to be conclusively proved as most of findings on there aspects are based on hearsay. But aqain, no hard evidence is needed to support these charges. What is needed is to show the actions with a high probability to leading to these charges". Further, the Disciplinary Authority 4, 11 0.4. 546 of 2021 has conclusively held that "a senior scale officer is not likely to go against a SAG Officer normally in such matters. After considering all facts, | am in agreement with the rationale/ logic of the 1.0.". The Disciplinary Authority is_ required to arrive at_conclusion on the basis of reasons along with application of independent mind. From reading of reasoning given by the Disciplinary Authority that a senior scale officer is not likely to go against a SAG Officer normally in such matters is absurd, preposterous and quite subjective which per se cannot be accepted in the departmental proceeding. Hence, the Disciplinary Authority has made error or record and has not applied his independent mind. The Disciplinary Authority has virtually over stretched the principles of preponderance of probability without even examining that whether the said conclusion arrived at is attracted on the principles of preponderance of probability or not. |
(vi) Perversity in the order of the Appellate Authority :- Despite holding the fact by the Appellate Authority that "it is observed that the C.O. with regard to this Article of Charge has commented that this Article of Charge is based solely on the statement of evaluator Shri Ujjal Goswami and no other evidence is available DA further contended that since the charge against the CO of gaining access to the codes of answer sheets is not well established, the Article of Charge IV against Co loses its relevance. After all, without knowledge of codes, CO could not influence evaluator." The Appellate Authority has erroneously partly proved the charge which as per his own acknowledgement of fact, such charge cannot be proved. It is apparent that the Appellate Authority has shown total non application of mind and has arrived at the conclusion contrary to the facts narrated in the order, thereby rendering the entire charge non-est and present is the case of no evidence, therefore, the penalty imposed by the Appellate Authority is fit to be quashed and set aside."
The legal lacunae in the conduct of the proceedings as averred by the applicant are the following:
(i) | That, the allegations levelled in connection with the conduct of selection to the post of Junior Shroff from Ground-D post during the year 2012, is not only concocted, baseless, punitive and far from truth but also with malicious intention.
(ii) That, the applicant's request to the General Manager for supply of documents (for the reason that the allegations are more than 03 years old) showing her inability to submit reply to the charge sheet in absence of documents, was denied arbitrarily.
She even filed OA against the order of non supply of documents but:
the same was dismissed whereafter she filed writ petition before Hon'ble - High Court vide WP CT No.55/2016 which was disposed of in her favour.
(iii) That, after about more than 02 years from the date of order of Hon'ble High Court, the Inquiry Officer submitted his report on 27.03.2018 where in all charges were stated to be proved which is not only perverse, per-se-illegal but also based on hearsay.' oO 12 0.A. 546 of 2021
(iv) That, the DA records that "the charges leveled allude to ulterior motive, ill-motive, malafide intention or undue interference in the 4 Articles of the Charges. | do agree with the C.O's allegations as none of these have come out to be conclusively proved as most of findings on these aspects are based on hearsay" and that "I do agree with the C.O's allegations as none of these have come out to be conclusively proved as most of findings on these aspects are based on hearsay". .
DA has no option but to exonerate the applicant thus the impugned penalty order is per-se-illegal and based on non application of quasi- judicious mind. It clearly shows that once the Disciplinary authority admitted and accepted the submission/defense of applicant holding that - one of the 04 articles of charges are conclusively proved and also that the allegations are based on hearsay, the Disciplinary authority cannot go against his own finding. Hence without applying his quasi-judicious mind the DA has imposed punishment, which as such is not sustainable in the eye of law.
(v) That, the Appellate authority has held that the charges under Article-! is proved, Article-Il is not proved and Article-ill & IV are partly proved, which is bad in law and with told non application of mind in view of Para-4 of Appellate order itself in which it has been recorded that:
"And, now, therefore, the President, after carefully considering the appeal dated 24.05.2019 preferred by the said Smt. Binita Mitra, in the light of the facts/aspects relevant to the case and in consultation with the Union Public Service Commission (UPSC), has decided to accept the aforesaid appeal preferred by said Smt. Binita Mitra, against the penalty of 'reduction by (02 (two) stages for 01 (one) years with cumulative effect' as earlier | imposed on her by the Railway Board vide order dated 10.04.2019 and revise the penalty to "reduction of pay by 01 (one) stage for 01 (one) year with cumulative effect."
That, the Appellate authority has committed error while revising the punishment, as Once the Appellate authority has recorded _his finding stating that_in consultation with the Union Public Service Commission (UPSC), it has decided to accept the aforesaid appeal preferred by said Smt. Binita Mitra, no punishment could be imposed or can be legally.
5. The applicant would further contend that This Tribunal vide order dated 07.04.2021 has been pleased to ask the Respondents to submit explanation with regard to allegation No.1 concerning violation of CPO circular but neither in Written statement nor even subsequently any explanation on the query of this court has been brought on record. The Respondents have also failed to clarify as © 13 0.A. 546 of 2021 to how the Article 1! was proved and Article Il! & IV were partly proved, as enquired by this Court.
That in the entire written statement nowhere the respondents have substantiated the finding of DA and AA who accepted in Para-4.4 and para-4 stating that none of the charges are proved conclusively, findings are based on hearsay and appeal of applicant is accepted respectively. That the judgments referred to have no relevance to the facts and circumstances of this case as referred to above but used only to mislead this Tribunal.
6. The respondents on the other hand have categorically repelled the arguments in the following manner:
They would reiterate the allegations as under, | "6.1.1 She committed grave misconduct in connection with conducting to the selection to the post of junior Shroff from Gr. 'D' staff against 33.33% quota for 9 vacancies (UR-6, SC-2, ST-1) in as much as with the following irregularities:
6.1.1.1 Article -- | relates that the applicant with an ulterior motive unofficially engaged one Smt. Krishna Sen, Sr. SO (A) of CAO (Works)/Eastern Railway to function as invigilator in the written test conducted on 23.09.2012 for selection to the post of Junior Shroff at Accounts Stores hall, 2"? Floor, Fairlie Place, Kolkata without any prior information to the paper setter-cum-selection conducting officer.
6.1.1.2 Article-Il of Charge relates that despite having no provision for a HOD to present in the Examination Hall, but, also actively involved herself in the examination process, which is indicative of her ill motive and support to the mal-practices in the said examination, due to which certain undeserving candidates could find place in the list of selected candidates.
6.1.1.3 Article-ill of charge relates that the applicant irregularly allowed Shri A.K. Bhunia, the then SPO (RP)/ Eastern Railway to conduct coding (allocation of Dummy Roll Numbers) of Answer sheets in the said written examination in her chamber but also in her presence, apparently with a malafide intension to get access of Code Numbers of Answer sheets. Thus, she violated the confidentiality of coding of Answer scripts and indulged herself in vitiating the sanctity of the said examination.
6.1.1.4 Article-IV of charge relates that the applicant being the panel approving authority of the said selection, irregularly directed Shri Ujjal Goswami, the then: -
Sr.AFA/TA-11/Eastern Railway and the member of the Selection Committee-cum -- _ evaluator of the Answer scripts (both Hindi & English), to meet her before submission of evaluated Answer scripts along with tabulation statement, to the Personnel Branch. From the statement of Shri Goswami, it was revealed that when he met the applicant, she asked him to show the tabulation statement. Shri Goswami has also stated that she was not only aware of the Code Numbers of certain candidates but also desired to see 14 0.A. 546 of 2021 the Answer scripts of 2 or 3 candidates and when shown, she browsed through these Answer scripts. This action on part of the applicant not only shows her_undue interference in the process of selection, with an ulterior motive but is also in violation of _extant instructions.
6.2 Thus, by this aforesaid act, the applicant failed to maintain absolute integrity, exhibited lack of devotion to duty and acted in a manner unbecoming of a Railway Servant in contravention of Rule 3.1 (i), (ii), (iii) of Railway Services (Conduct) Rules, 1966.
6.3 The applicant instead of submitting any 'Defence Statement' in response to the charge memorandum dated 25.03.2015, filed OA No. 177/2016 before the Hon'ble CAT/Kolkata Bench for inspection of files, which was not permitted. Thereafter, the applicant inspected the original RUDs on 25.07.2015. The applicant issued another letter to the Railway Board for inspection of entire selection file to enable her to submit a -
comprehensive defence statement. The applicant was replied that all the documents as called for are part of the charge sheet and the same could be prayed before the Enquiry Officer for consideration. Hon'ble CAT/Kolkata Bench dismissed the OA filed by the applicant vide order dated 24.02.2016. Thereafter, considering the facts and circumstances to the case including that a considerable time has already elapsed in the process and the applicant has failed to submit her written statement of defense, in response to the charge memorandum dated 25.03.2015, it was decided by the Disciplinary Authority (DA in short) to remit the case to inquiry as per Rule 9(2) of Railway Servants (D & A) Rules, 1968 for which orders appointing Shri Arun Bhagra, Retired AGM/South Central Railway as Inquiry Officer & Shri Sanjiban Sen, Sr. SO(A)/Eastern Railway as Presenting Officer were issued on 08.03.2016.
6.4 Being aggrieved, the applicant filed Writ Petition before the High Court, Kolkata vide WPCT No. 55/2016 challenging the Tribunal's order dated 24.02.2016 passed in OA No. 177/2016. Hon'ble High Court, Kolkata disposed the WPCT vide order dated 16.03.2016 directing the DA to take a decision for inspection of the selection files by the applicant. Accordingly, in compliance with the Hon'ble High Court's judgment dated 16.03.2016, applicant inspected 03 nos. of selection files and collected relevant extract from those files on 19.12.2016.
The Inquiry officer submitted his report dated 27.03.2018 holding all the Articles of Charge as 'Established' against the applicant. xxx = The applicant vide representation dated 24.08.2018 prayed to set aside departmental proceedings initiated against her under charge memorandum dated 25.03.2015 following Inquiry Officer's report.
Thereafter, Railway Board as Disciplinary Authority after carefully considering the charge memorandum dated 25.03.2015, entire proceedings, inquiry report, representation of the applicant dated 24.08.2018 and other records relevant to the case, vide order dated 10.04.2019 concluded that Article of Charge |, Il, Ill & IV are proved & Article I! only partially proved and imposed a penalty of "reduction by two stages for a period of 1(one) year with cumulative effect" upon the applicant. While passing the said order the disciplinary authority has observed:
"4.2 1 find that a lot of the defence statement now given is on a large number of procedural issues and the way the exigency had been conducted. Many aberrations have been pointed out by the C.O. on the unbiasness/impartiality and bonafides of the Inquiry. | have gone over the averments of the C.O., the 1O's report and the rationale. | do not find that there is any direct/indirect bias on the part of 1.0. nor does any specific inconsistency come through." oe The said order of Railway Board was served upon the applicant on 12.04.2019.
Aggrieved with the penalty imposed on her, the applicant preferred an appeal dated 24.05.2019 before the President of India. Since President was the appellate authority to consider the appeal preferred by the Applicant, UPSC was needed to consult
8. 45 0.A. 546 of 2021 as per proviso to Rule 22 (2) (c) of Railway Servant (Discipline & Appeal) Rules, 1968 and constitutional provision i.e. Article 320 (3) (c) read with its Regulations. Accordingly the case along with relevant records was forwarded to the UPSC, a statutory organization for advice as to whether the penalty imposed is adequate, inadequate or excessive, so as to enable the President, the Appellate Authority to take a final decision on the appeal.
In the light of the findings and after taking into account all other aspects relevant to the case, the President in consultation with the UPSC decided to accept the appeal dated 24.05.2019 preferred by the applicant against the penalty of "reduction by two stages for a period of 1(one) year with cumulative effect" as earlier imposed vide order dated 10.04.2019, revised the penalty to "reduction by 1(one) year with cumulative effect" holding that Article | of the charge as proved, Article Il not proved & Article ill & IV as partly proved. The same was communicated vide order dated 08.02.2021, which the applicant received on 15.02.2021.
xxx "that finding of the competent authority are based on evidence on records and thus it is not arbitrary".
The Ld. Counsels were heard and records perused.
In State of Punjab and Ors. -vs- Ram Singh Ex Constable [1992 (4) SCC 54] ; 1992 SCC (L&S) 793; (1992) 21 ATC 435, Hon'ble Court was considering what constituted 'misconduct', and found as under:
"Misconduct has been defined in Black's Law Dictionary, Sixth Edition at page 999, thus:
'A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, its synonyms are misdemeanor, misdeed, misbehavior, delinquency, impropriety, mismanagement, offense, but not negligence or carelessness.' Misconduct in office has been defined as:
"Any unlawful behaviour by a public officer in relation to the duties of his office, willful in character. Term embraces acts which the officer holder had no right to perform, acts performed improperly, and failure to-act in the face of an affirmative duty to act."
In P. RamanathaAiyar's Law Lexicon, 3rd edition, at page 3027, the term 'misconduct' has been defined as under:
"The term 'misconduct' implies, a wrongful intention, and not a mere error of judgment.
In Union of India &Ors. vs. J. Ahmed (1979 (2) SCC 286) :1979 SCC (L&S) © 157, it was observed, that;
"Code of conduct as set out in the Conduct Rules clearly indicates the conduct expected of a member of the service. It would follow that conduct which is blameworthy for the Government servant in the context of Conduct w) 16 O.A. 546 of 2021 Rules would _be_ misconduct, If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct (see Pierce v. Foster, 17 Q.B. 536, 542). A disregard of an 'essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers, 1959 1 WLR 698)]. This view was adopted in Shardaprasad Onkarprasad _Tiwari_v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur, (61 Bom LR 1596), and Satubha K. Vaghela v. MoosaRaza (10 Guj LR 23). The High Court has noted the definition of misconduct in Stroud''s Judicial Dictionary which runs as under:
"Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct."
(emphasis added) The allegations against the applicant do not mention about any deviation from any professed norm or code, arising out of any "ill motive" to favour any particular candidate. They do not denote any transgression of any definite rule of action, any forbidden act, dereliction of duty, unlawful behaviour.
As such the conclusions of the 1O and other authorities are neither reasonable nor on sound principles rather irrational and not supported by evidence.
9. In Chairman and Managing Director, United Commercial Bank and Others vs P.C. Kakkar and Managing [Appeal (civil) 3433 of 2000], the factual background in a nutshell was that, "Disciplinary proceedings were initiated by the United Commercial Bank --
(hereinafter referred to as 'the employer') against P.C. Kakkar (hereinafter referred to as 'the employee). It was alleged that he had committed several acts of misconduct while functioning as Assistant Manager of Mirzapur Branch. He was placed under suspension w.ef. 6.7.1983. The disciplinary proceedings were initiated in. terms of United Commercial Bank Officer Employees (Conduct, Discipline and Appeal) Regulation 1976 (hereinafter referred to as 'the regulation'). The charges were found established in respect of charge nos. 1, 2, 3, 6, 7 and 8. On the basis of findings recorded by the Inquiry Officer and as endorsed by the Disciplinary Authority, order of dismissal was passed on 16.8.1988. Appeal preferred by the employee before the prescribed appellate authority did not bring any relief: Similar was the fate of the review application. Matter was carried in writ petition before the Allahabad High Court. As noticed by the High Court, there was no challenge to the findings recorded, and what was urged related to the 17 0.A. 546 of 2021 quantum of punishment. One of the points highlighted to question the quantum of punishment was that in a similar situation, lesser punishment was imposed on one M.L. Keshwani though the allegations against him were of much serious nature. The High Court accepted the plea and, inter alia, directed as follows:-
"The Supreme Court has held in several cases that there should be no ~ discrimination in the matter of punishment vide Sangram Singh Versus State of Punjab (1983 (4) SCC 225). .
On the facts of the case we are of the opinion that the punishment given to the petitioner was misappropriate and excessive. Hence while we uphold finding of guilt. We quash the orders dated 16.8.1988 and the order dated 11.10.1989 and 5.2.1990 and direct that the petitioner shall be reinstated in service within six weeks of production of certified copy of this order before ...
the authority concerned but he will be given a lesser punishment. Since the matter has been pending for a long time we direct that the petitioner will be given the punishment of being deprived of 75% of salary for the period from the date of removal to the date of reinstatement and he will be given a severe warning not to make such mistakes in future but he will get seniority and continuity of service as if his service had not been terminated."
According to learned counsel for the employer, after having found that the charges were established the High Court committed an error in interfering with the quantum of punishment. The scope of such interference is extremely limited. After having noted that there was no challenge to the findings, there was no scope for interfering with the quantum _of punishment. Some of the charges were of very serious nature _and one of the charges related to fabrication and manipulation of records. It is pointed out that even if a_co-
delinquent has been given lesser punishment, same cannot be a ground for interference. The employee was acting as Assistant Manager in the Bank -- and committed the acts of misconduct. Taking into account the higher standard of honesty and integrity required by such employees any .--
interference with the quantum of punishment would amount to misplaced sympathy. According to Mr. Ranjit Kumar, learned counsel appearing for the employee, there were several mitigating circumstances. It was categorically urged that there was no embezzlement or fraud and there was no loss caused to the Bank. The allegations of fictitious entries were found not to have been established in a criminal case which was initiated by the Central Bureau of Investigation and the employee was acquitted of the charge. Further case on which the High Court has placed reliance involved more serious allegations and even if the allegations so far as other officer ML. Keshwani and the employee can be differentiated, yet it has to be noted that the High Court imposed more severe punishment compared to ML. Keshwani. -
The scope of interference with quantum of punishment has been the subject- matter of various decisions of this Court. Such interference cannot be a routine matter.
Lord Greene said in 1948 in the famous Wednesbury case (1948 (1) KB 223) -
that when a statute gave discretion to an administrator to take a decision, the scope of judicial review would remain limited. He said that interference was not permissible unless one or the other of the following conditions was 18 O.A. 546 of 2021 satisfied, namely the order was contrary to law, or relevant factors were not considered_or irrelevant factors were considered; or the decision was one which no reasonable person could have taken. These principles were consistently followed in the UK and in India to judge the validity of administrative action. It is equally well known that in 1983, Lord Diplock in Council for Civil Services Union v. Minister of Civil Service [(1983) I AC 768] (called the CCSU case) summarized the principles of judicial review of administrative action as based upon one or other of the following viz., illegality, procedural irregularity and irrationality. He, however, opined that "proportionality" was a "future possibility".
In State of Gujarat v. Patel Raghav Natha and Others [(1969) AIR 1297;
and Prag Das Umar Vaishya v. The Union of India and Others (2) it was held:
"When judicial power is exercised by an authority normally performing executive or administrative functions, this Court would require to be satisfied that the decision has been reached after due consideration of the merits of the dispute, uninfluenced by extraneous considerations of policy or expediency.
XXX XXX XXX Where an administrative action is challenged as "arbitrary" under Article 14 on the basis of Royappa (1974) 4 SCC 3 (as in cases where punishments in disciplinary cases are challenged), the question will be whether the administrative order is "rational" or "reasonable" and the test then is the Wednesbury test. The courts would then be confined only to a secondary role and will only have _to_see whether the administrator has done well in his _ primary role, whether he has acted illegally or has omitted relevant factors - from_consideration or_has_taken irrelevant factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary.
XXX XXX XXX 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."
19 0.A. 546 of 2021 In B.C. Chaturvedi vs. Union of India and Ors. (1995 [6] SCC 749) it was observed: .
"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."
In Union of India and Anr. vs. G. Ganayutham (1997 [7] SCC 463), this Court summed up the position relating to proportionality in paragraphs 31 and 32, 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 20 | O.A. 546 of 2021 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 judgement 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."
In the aforesaid backdrop it is noticed that the allegations against the applicant have not been proved conclusively as discussed hereunder;
(1) That, the CO (applicant) with an "ulterior motive" engaged Krishna - Sen, Sr. S.0.(A) as invigilator has not been proved conclusively inasmuch as there is no recorded evidence that the said invigilator Krishna Sen had facilitated or yielded favour to any candidate during . examination. 1O's conclusion that CO had her way in getting SW-4 to invigilate, unauthorizedly and Charge-l is substantiated or that there was a_ high probability to lead to the charges, is fallacious, unreasonable and irrational in absence of any finding against any particular candidate that he or she was favoured.
(2) That, the CO was not only present in the examination hall but had "actively involved" herself in the examination process or supported malpractices, was not supported by any of the PWs except one. The prosecution failed to prove that as an HOD the CO (applicant) was debarred from entering the examination hall or had influenced the officers engaged in the selection process to yield under favour to any.
The charge is vague, lacks particular and the conclusion on guilt is not 21 0.A. 546 of 2021 supported by any professed norm that has been allegedly transgressed.
(3) That, A.K. Bhunia was "irregularly" allowed to conduct coding in the chamber of CO, was not proved even on the basis of preponderance of probability. On the contrary UPSC has clearly observed that "the act of coding in presence of the CO, did not violate the confidentiality of code".
(4) The allegation that the CO had directed one Ujjal Goswami Sr. AFA, a member of the selection committee cum evaluator to meet her before submission of answer scripts shows her undue interference with an ulterior motive and in violation of the extant-instructions is also not proved conclusively. In absence of any evidence of tampering with the tabulation sheet, that stood already prepared before coding, or switching of answer scripts of candidates to favour any candidate, UPSC has clearly observed that the charge of gaining access to the codes has not been established.
The allegation levelled by the Enquiry Officer that CO had deliberately summoned SW-2 before the decoding (and the SW-2 may not have revealed) to make sure that if required, the answer scripts of any particular candidates could be switched/substituted, as blank answer books were readily available at HQ is beyond the charges levelled, and therefore, not a conclusion on the charges but a levelling of a new charge by the IO which is not legally permissible.
Therefore the conclusions of the enquiry officer are irrational, unfair, arbitrary, and based on surmises not supported by evidence, beyond the © . 22 O.A. 546 of 2021 charges levelled and hence not sustainable. Both the Disciplinary -- Authority, as well as the Appellate Authority have failed to apply their mind on the perverse findings. They seem to get swayed away by such conclusions.
10. The applicant has heavily relied upon the following decisions:
(1) M/S Kranti Associates Ltd. & Anr. -vs- Masood Ahmed Khan & Ors. (2) Shri Nand Kishore Prasad --vs- State of Bihar, (1979) 3 SCC 866 (3) | Tranvancore Rayon Ltd. --vs- Union of India:
To appreciate the defect complained of, it would be profitable to quote the | following:
In Kranti Associates (supra) where Tranvancore Rayons (supra) was considered, Hon'ble Apex Court held:
"15. The necessity of giving reason by a body or authority in support of its decision came up for consideration before this Court in several cases. Initially this Court recognized a sort of demarcation between administrative orders and quasi- judicial orders but with the passage of time the distinction between the two got blurred and thinned out and virtually reached a vanishing point in the judgment of this Court in A.K. Kraipak and others vs. Union of India and others reported in AIR 1970 SC 150.
16. In Kesava Mills Co. Ltd. and another vs. Union of India and others reported in AIR 1973 SC 389, this Court approvingly referred --
to the opinion of Lord Denning in Rigina vs. Gaming Board Ex parte Benaim [(1970) 2 WLR 1009] and quoted him as saying "that heresy was scotched in Ridge and Boldwin, 1964 AC 40".
17. The expression 'speaking order' was first coined by Lord Chancellor Earl Cairns in a rather strange context. The Lord Chancellor, while explaining the ambit of Writ of Certiorari, referred to orders with errors on the face of the record and pointed out that an order with errors on its face, is a speaking order. (See 1878-97 Vol. 4 Appeal Cases 30 at 40 of the report)
18. This Court always opined that the face of an order passed by a quasi-judicial authority or even an administrative authority affecting the rights of parties, must speak. It must not be like the 'inscrutable face of a Sphinx'. | 23 0.A. 546 of 2021 XXX XXX XXX
23. In M/s. Mahabir Prasad Santosh Kumar vs. State of U.P and others, AIR 1970 SC 1302, this Court held x x x recording of reasons in support of a decision on a disputed claim ensures that the decision is_not_a_result of caprice, whim_or fancy but was arrived at after considering the relevant law and that the decision was just.
24. In the case of M/s. Travancore Rayons Ltd. vs. The Union of India and others, AIR 1971 SC 862, in exercising judicial power reasons in support of the order must be disclosed on two grounds. The first is that the person aggrieved gets an opportunity to demonstrate that the reasons are erroneous and secondly, the obligation to record reasons operates _as_a deterrent against possible arbitrary action by the executive authority invested with the judicial power.
25. In M/s. Woolcombers of India Ltd. vs. Woolcombers Workers Union and another, AIR 1973 SC 2758, this Court xxx insisted on the need of giving reasons in support of conclusions xxx held that the very requirement of giving reason _is_to prevent unfairness or arbitrariness in reaching conclusions. The second principle is based on the jurisprudential doctrine that justice should not only be done, it should also appear to be done as well. The learned Judges said that.a just but unreasoned conclusion does not appear to be just to those who read the same. Reasoned and just conclusion on the other hand will also have the appearance of justice.
26. In Union of India vs. Mohan Lal Capoor and others, AIR 1974 SC 87, this Court x x x reasons must disclose how mind was applied to the subject matter for a decision regardless of the fact whether such a decision is purely administrative or quasi-judicial. This Court held that the reasons _in_such context would mean the link between materials which are considered and the conclusions which are reached. Reasons must reveal a rational nexus between the two.
27. In Siemens Engineering and Manufacturing Co. of India Ltd. vs. The Union of India and another, AIR 1976 SC 1785, this Court held that it is far too well settled that an authority in making an order in exercise of its quasi-judicial function, must record reasons in support of the order it makes. The rule requiring reasons in support of a quasi- judicial order is, this Court held, as basic as following the principles of natural justice. And the rule must be observed in its proper spirit. A_mere pretence of compliance would not satisfy the requirement of law.
XXX XXX XXX
31. In Rama Varma Bharathan Thampuran vs. State of Kerala and Ors., AIR 1979 SC 1918, Justice V.R. Krishna Iyer speaking for a three-Judge Bench held xxx One of the attributes of quasi- judicial functioning is the recording of reasons in support of decisions taken and the other requirement is following the principles of natural justice. xxx that natural justice requires reasons to be written for the conclusions made.
a) ' z 24 0.A. 546 of 2021
32. In Gurdial Singh Fijji vs. State of Punjab and Ors., (1979) 2. SCC 368, dealing with a service matter, relying on the ratio in Capoor' (supra), held that "rubber-stamp reason" is not enough and virtually quoted the observation in Capoor (supra) to the extent that_reasons Yare the links between the materials on which certain conclusions are based and the actual conclusions,"
33. In a Constitution Bench decision of this Court in Shri Swamiji of Shri Admar Mutt etc. etc. vs. The Commissioner, Hindu Religious and Charitable Endowments Dept. and Ors., AIR 1980 SC 1, while giving the majority judgment Chief Justice ¥.V. Chandrachud referred to Broom's Legal Maxims (1939 Edition, page 97) where the principle in Latin runs as follows: | "Ces-sante Ratione Legis Cessat Ipsa Lex"
34. The English version of the said principle given by the Chief Justice is that:
"Reason is the soul of the law, and when the reason of any particular law ceases, so does the law itself."
XXX
35. In M/s. Bombay Oil Industries Pvt. Ltd. vs. Union of India and Others, AIR 1984 SC 160, this Court held x x x the faith of the people in administrative tribunals can be sustained only if the tribunals act fairly and dispose of the matters before them by well considered orders. In saying so, this Court relied on its previous decisions in Capoor (supra) and Siemens Engineering (supra).
36. In Ram Chander vs. Union of India and others, AIR 1986 SC 1173, this Court was dealing with the appellate provisions under the Railway Servants (Discipline and Appeal) Rules, 1968 condemned the mechanical way of dismissal of appeal in the context of requirement of Rule 22(2) of the aforesaid Rule. This Court held that the word "consider" occurring to the Rule 22(2) must mean the Railway Board - a shall duly apply its mind and give reasons for its decision. The learned Judges held that the duty to give reason is an incident of the Judicial process and emphasized that in discharging quasi-judicial functions the appellate authority must act in accordance with natural justice and give reasons for its decision.
XN XXX XXX
38. In Maharashtra State Board of Secondary and Higher Secondary Education vs. K.S. Gandhi and others, (1991 ) 2 SCC 716, this Court held that even in domestic enquiry if the facts are not in dispute non- recording of reason may not be violative of the principles of natural justice but where facts are disputed necessarily the authority or the enquiry officer, on consideration of the materials on record. should record reasons in support of the conclusion reached.
¢ 7, OO 25 0.A. 546 of 2021
50. The position in the United States has been indicated by this Court in S.N. Mukherjee (supra) in paragraph I] at page 1988 of the.
judgment. x x x on the recording of reasons by administrative authorities in exercise of their powers. It was further held that such recording of reasons is required as "the Court cannot exercise their --
duty of review unless they are advised of the considerations underlying the action under review" .
XxX XXX xxx 51, Summarizing the above discussion, this Court holds:
a. In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
bA quasi-judicial authority must record reasons in support of its conclusions. | c. Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also"
appear to be done as well.
d. Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power. .
e. Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.
f Reasons have virtually become as indispensable a component of a decision making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
g. Reasons facilitate the process of judicial review by superior Courts, h. The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the life blood of judicial decision making justifying the principle that reason is the soul of Justice. i. Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.
j. AInsistence on reason is a requirement for both judicial accountability and transparency. k. If a Judge or a quasi-judicial authority is not candid enough about his/her decision making process _ then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism. 1.7
11. 26 0.A. 546 of 2021 Reasons in support of decisions must be cogent, clear and succinct. A. pretence of reasons or 'rubber-stamp reasons' is not to_be equated with a valid decision making process.
m. It cannot be doubted that transparency is the sine qua non of restraint_on_ abuse of judicial powers. Transparency in decision making not only makes the judges and decision makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law _ Review 731-737). n. Since the requirement to record reasons emanates from the broad doctrine of fairness in decision making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See (1994) 19 EHRR 553, at 562 para 29 and Anya vs. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".
0. In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence; and is virtually a part of "Due Process".
52. For the reasons aforesaid, we set aside the order of the National Consumer Disputes Redressal Commission and remand the matter to the said forum for deciding the matter by passing a reasoned order in the light of the observations made above. Since some time has _ elapsed, this Court requests the forum to decide the matter as early as possible, preferably within a period of six weeks from the date of service of this order upon it."
In Nand Kishore (supra) Hon'ble Apex Court Held:
"It is well established that the mere fact that the evidence as against a Government servant has not been found to be sufficient for his conviction in a criminal case, is by itself no ground for setting aside an order passed against him in a departmental proceeding based on the same allegation, if ° such an order is supported by some evidence and is not based on merely conjectures and surmises or is passed without any evidence whatsoever. Reference may be made in this connection to the Full Bench decision of our own High Court in the case of Bhagwati Singh v. District Electric Engineer, AIR 1966 Pat 205 in which the following observations -were made:
"So_long as there is some evidence, however meagre it may be to support the findings of the Departmental Authorities, it will not be proper for this Court to set aside those findings on the ground that the best evidence was not adduced." (Vide page 207. col. 2) Reference may also be made to the following observations of the Supreme Court in the case of Board of High School and Intermediate Education v Bagleshwar Prasad, AIR 1966 SC 875,"
12. 27 0.A. 546 of 2021 In the case at hand, the disciplinary authority has observed that "the charges levelled allude to ulterior motive, ill-motive, malafide intention or . undue interference". But that none of these have come out to be conclusively proved as most of findings on these aspects are based on hearsay. His observation that "no hard evidence is needed to support these . charges" inarguably points out to lack of evidence to support the charge, therefore, his reasoning to uphold the charge in the manner it has been done that is highly irrational arbitrary, unreasonable and motivated. What was needed is to show in the least is that the actions have a high ' probability to lead to these charges of engaging invigilator with ill motive, presence of CO in examination hall with ill motive to support malpractice, violating confidentiality of coding of Answer Scripts and indulging in vitiating the sanctity of the said examination by allowing coding to be done in her chamber or undue interference in selection process with ulterior motive and in violation of extant instructions. in absence of any evidence of having yielded any favour to any undeserving candidate, or of violation of any professed norm or guideline, or tampering with tabulation sheet, or switching of answer scripts, could not be held to be proved, the conclusions on the guilt are neither supported by any evidence nor by reason. If the charges are not conclusively proved, the imposition of penalty is bound to be bad in law and liable to be interfered with.
In Travancore Rayon (supra) Hon'ble Apex Court Held:
"Exercise of the right to appeal to this Court would be futile, if the authority chooses not be disclose the reasons in support of the decision reached by it. A party who at broaches the Government in exercise of a statutory right for Adjudication of a dispute is entitled to know at least the official designation of the person who has considered the matter, what was considered by him, and the reasons' for recording a decision against him. To .4
28 0.A. 546 of 2021 enable the High Court or this Court to exercise its constitutional powers, not only the decision, but an adequate disclosure of materials justifying an inference that there has been a judicial consideration of the dispute, by an authority competent in that behalf in the light of the claim made by the |. -
aggrieved party, is necessary. If the Officer acting on behalf of the Government chooses to give no reasons, the right of appeal will be devoid of any substance,"
13. No records constituting specific evidence of any favour to any particular candidate in the selection process due to interference by the CO (applicant) has emerged. The allegations levelled are therefore wild and baseless and untenable.
(v) None of the allegations levelled suggest violation of any particular provision, code or law rendering the alleged action of the CO (applicant) ' violative of any legal provision or procedure. No legal provision, .
guideline, rule alleged to be violated has been placed on record for substantiation. Allegation of Commission of a misconduct and possession of ill motive without any proof of violation of laid down policy or evidence or aberrations cannot be arrived at from air. It has to be supported by materials, reasonableness and rationality.
(vi) No records have been furnished to demonstrate that the selection, which is alleged to be vitiated due to the involvement of the CO (applicant), was finally cancelled, meaning thereby that there was .. presence of materials to conclusively conclude that a candidate was unduly favoured, or had reaped benefit from any of the actions © complained of for which the selection stood vitiated. As such, the allegations seem to have been framed with a malfide intention. |
(vii) The applicant has successfully met all the charges. On the contrary, the respondents have failed to drive home the charges successfully. The f 29 0.A. 546 of 2021 applicants contentions have been carefully and purposely brushed aside with come alien purpose.
11. We have already noted that the allegation levelled do not seem to -- constitute any misconduct. As such the conclusion on guilt by the IO and its blind support by the Disciplinary Authority, Appellate Authority, when considered in | the backdrop of the implications of the decisions noted and enumerated (supra), tempt us to hold that the ? conclusion of the disciplinary authority and the appellate authority on the correctness of framing of charges, conclusion of 10 on the guilt is not in order. Accordingly the enquiry report and consequent penalty and appellate orders are quashed, however, with liberty to act in accordance with law. No costs.
(Dr. N. Chatterjee) | (Bidisha Banerjee) Administrative Member Judicial Member drh