Central Administrative Tribunal - Jabalpur
Shivdayal vs M/O Defence on 31 July, 2018
Sub: Disciplinary enquiry 1 OA No.200/00611/2016
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/00611/2016
Jabalpur, this Tuesday, the 31st day of July, 2018
HON'BLE SHRI NAVIN TANDON, ADMINISTRATIVE MEMBER
HON'BLE SHRI RAMESH SINGH THAKUR, JUDICIAL MEMBER
Shivdayal S/o Late Shri Karodi Lal T.No. S.O. 282/001420
Dunwan aged about 58 years R/o H.No.3285 In front of J.D.A.
Colony Bada Pathar Ranjhi Jabalpur District Jabalpur (M.P.) PIN
Code No.482005 -Applicant
(By Advocate -Shri Rajesh Soni)
Versus
1. Union of India, through its Secretary
Ministry of Defense, Defense House
South Block, New Delhi PIN Code No.110001
2. The Chairman,Ordinance Factory Board,
10-A Shaid Khudiram Bose Marg,
Kolkata West Bengal PIN Code No.700001
3. Senior General Manager
Ordinance Factory Khamriya Jabalpur
District Jabalpur PIN Code No.482011 - Respondents
(By Advocate -Shri D.S. Baghel)
(Date of reserving the order: 31.01.2018)
ORDER
By Navin Tandon, AM:-
The applicant is aggrieved by imposition of penalty of reduction of pay by two stages for a period of one year on the charges levelled against him of (i) leaving factory unauthorisedly Page 1 of 14 Sub: Disciplinary enquiry 2 OA No.200/00611/2016 while on duty, and (ii) unauthorized presence in the jungle area of Eastland.
2. The brief facts of the case are that the applicant while working as Durwan in Ordnance Factory Khamaria was charged with gross misconduct of deserting working place on 04.12.2010.
The applicant was detailed to be present in front of the Admin Building from 1200 Hrs where Kamgar Union were to submit memorandum to the Senior General Manager. He did not report to his working place and remained away. In stead of reporting to his duty place he left the factory unauthorisedly without any authority.
He was found present in the jungle area of Eastland at about 1215 Hrs having his lunch that too in civil dress. Accordingly a charge sheet was issued to him under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 {for brevity 'CCS(CCA) Rules'} vide memo dated 16.12.2010. The applicant denied the charges. An enquiry officer was appointed to conduct enquiry vide order dated 18.01.2011. The enquiry officer submitted his report dated 14.07.2014 concluding the charges framed against the applicant as proved/established. The enquiry report was accepted by the disciplinary authority. A copy of the enquiry report was forwarded to the applicant for making his representation. The applicant submitted his representation dated 08.10.2014. The Page 2 of 14 Sub: Disciplinary enquiry 3 OA No.200/00611/2016 disciplinary authority after considering applicant's representation as well as other evidence and documents held the applicant guilty of the charges, and imposed the penalty of 'reduction in pay by two stages in his pay band for a period of one year with cumulative effect' vide his order dated 26.10.2014 (Annexure A-1). Thereafter applicant's appeal and revision were rejected by the appellate and revisionary authorities. Hence, this Original Application.
3. In this Original Application, the applicant has sought for the following reliefs:
"8.1 That applicant most humbly request to this Hon'ble Court be pleased to allow this original application and be to quash the impugned order dated 26.10.2014 & 25.04.2016 Annexure A-1 & Annexure A-12 and grant all the benefit to the applicant.
8.2 That the applicants humbly prayed to this Hon'ble Court be pleased to, and awarded all the benefit along-with 12% interest per annum and restore pay in the Two stage in his pay band and increment and further be pleased to set aside the reduction order 26.10.2014.
8.3 That the period of reduction as stated above will not be operate to his future increment.
8.4 That the applicant humbly prays to this Hon'ble Court may kindly be direct to respondent to pay auxiliary cost Rs.5,00,000/- and cost of the application be awarded in the favour of the applicant.
8.5 Any other order/orders, relief/reliefs which this Hon'ble court deems fit and proper, may kindly be also passed".Page 3 of 14
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4. The applicant in his petition has stated that various irregularities were committed during the course of enquiry and has, therefore prayed that the whole enquiry should be quashed including the punishment orders.
4.1 The applicant has stated that the date and time on the photograph, provided as proof, carries the time stamp different from the day and time of the incident.
4.2 He also contends that his supervisor Shri Rajeswari Prasad Supervisor has stated that the duty of the applicant was in Eastland area.
5. On the other hand the respondents vehemently opposed the averments contained in the Original Application and submitted that all adverse allegations made by the applicant are specifically denied.
5.1 The respondents have stated that the applicant is habitual of such indiscipline and have been awarded several penalties in the past.
5.2 In the instant case of disciplinary proceedings the entire process has been carried out as per rules. The witnesses have confirmed about the presence of the applicant at Eastland at the Page 4 of 14 Sub: Disciplinary enquiry 5 OA No.200/00611/2016 relevant time and the applicant and his Defence Assistant have also examined them.
5.3 Regarding the time stamp on the photograph, it has been contended by the respondents that the objection raised now is not sustainable in the eye of law. During the enquiry, neither the applicant nor his Defence Assistant raised any objection about the same. They further submit that Shri Mankar, who took the photographs is not a professional photographer. Therefore, he did not set the time and date of the camera. However, the witness confirmed the time and date when the photograph was taken during enquiry, which was not controverted by the applicant during enquiry.
5.4 The respondents have also stated that the statement of Shri Rajeswari Prasad, his Supervisor, is not true and he has tried to help the applicant during the enquiry. However, on verification of duty chart by the enquiry officer, it is seen that the applicant was detailed in general shift 09.30 hrs to 18.30 hrs and was detailed in Eastland area at 15.30 hrs.
6. Heard the learned counsel of parties and carefully perused the pleadings of the respective parties and the documents annexed therewith.
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7. The learned counsel for the applicant relied on the decision of the Hon'ble Supreme Court in the matters of Commissioner of Police, Delhi and others Vs. Jai Bhagwan, (2011) 6 SCC 376 wherein there was no clear proof of taking illegal gratification and in such circumstances their lordships held that proof of demand and receiving illegal gratification cannot be drawn from returning of the amount. It was further held that non-examination of complainant during departmental proceedings denied opportunity of cross-examination to delinquent in violation of rules.
8. Learned counsel for the applicant also cited the case of Suresh Chand Upadhyay Vs. Union of India and others, (2012) (1) MPLJ 102 of Hon'ble High Court of Madhya Pradesh, wherein the orders of penalty was set aside due to no evidence.
9. Learned counsel for the respondents also argued that the applicant was provided all the documents required. All the concerned witnesses were called and examined in the course of enquiry
10. We find that earlier the applicant had approached this Tribunal by filing Original Application No.200/00006/2016, which was disposed of vide order dated 17.02.2016. In terms of the direction of the Tribunal, the applicant's petition dated 05.02.2015 was duly considered on its merits as per provisions of Rule 29(3) Page 6 of 14 Sub: Disciplinary enquiry 7 OA No.200/00611/2016 of the CCS(CCA) Rules, 1965, by passing a speaking order dealing with each and every objection raised by the applicant, and rejected it vide impugned order dated 25.04.2016 (Annexure A-12). Relevant paragraphs of the said order read thus:
"(6) The record of the case reveals that on 04.12.2010 the petitioner was detailed on duty in General Shift for the period from 0930 hrs to 1830 hrs. On that day OFK Kamgar Union were to submit Memorandum to the Sr. General Manager at the time of lunch hours. The petitioner along with other Durwans was detailed to be present in front of Admin Bldg. But the petitioner instead of reporting to his duty place sneaked out of the factory and went to the jungle area of Eastland unauthorizedly without taking permission from his senior staff.
(6.1) On 04.12.2010 the Security Staff Shri Harjeet Singh, JWM/SO, Shri Deepak Kumar Mankar, SK/SO and other Jawans after visiting EDK went to Eastland area for surprise inspection in connection with some secret report regarding unauthorized activities in Eastland area. During the course of surprise visit the petitioner was found having his lunch there in civil dress. When the Security Staff enquired about his duty hours and place of duty, the petitioner informed them that he was in General Shift and he was detailed for taking round of "P" Type area. Thus, the petitioner not only remained present in the jungle area of Eastland unauthorisedly but tried to mislead the Security staff while justifying his presence there.
(07) The records held in the case further show that a Court of Inquiry in the matter was constituted on 18.01.2011. Inquiry Report was submitted on 14.07.2014 wherein the charges were established as proved against the petitioner based on oral and documentary evidence. The first hearing of the Court of Inquiry was held on 05.06.2013 and not on 23.12.2013, as contended by the petitioner. In the Court of Inquiry all the PWs were examined and cross-examined. Hence the petitioner was provided with reasonable opportunity to present his defence. During the proceedings of the COI held on 05.06.2013, all the charges were read Page 7 of 14 Sub: Disciplinary enquiry 8 OA No.200/00611/2016 out. The petitioner had denied all the charges. So, the contention that the charges were not read out at the beginning of the COI, is wrong. Also, there had been no violation of laid down procedure in this regard.
(0.8) In the instant petition, the Petitioner has raised the issue of delayed commencement of the Court of Inquiry proceedings. It is a fact that the inquiry proceedings had started on a belated date which was caused since the Inquiry Officer was heavily pre-occupied in production related activities being a senior officer in a Defence Production Unit like Ordnance Factory, Khamaria, Jabalpur. However, the delay in commencement of the inquiry proceedings does not have any bearing on the facts and circumstances of the case for which the chargesheet dt.16.12.2010 was issued. Thus, raising the issue at the Revisionary stage is irrelevant.
(0.9) In para - 05 against contentions No.(ii) & (iii) the petitioner has raised the issue of non-compliance of the provisions under the CCS(CC&A)Rules, 1965 and non- providing of documents for inspection. In this context, it is seen that the petitioner took about one month's time to submit the name of his Defence Assistant. The same was accepted by the Inquiry Officer. The petitioner had requested for Hindi Version of the charge-sheet which was provided to him. A demand was also there to provide the photographs taken during the incident and the same was provided to the petitioner on 10.12.2013. Also copies of the documents mentioned under Annexure-III of the charge sheet dt.16.12.2010 were already provided to the petitioner along with the relevant charge-sheet. Thus, the contention of the petitioner that the required documents were not provided and he was denied the opportunity to present his defence, is totally wrong and is not tenable. Also, there was no violation of the relevant rules laid down under the CCS(CC&A)Rules, 1965.
(10). From the proceedings of the COI, it is seen that the persons present during each hearing have put their signatures at the relevant place of the proceedings, so drafted. The petitioner also did not raise any objection at any stage of the inquiry proceedings. Also the petitioner never stated that he was not understanding the proceedings of the Court of Inquiry. Also there was no objection raised by the Petitioner Page 8 of 14 Sub: Disciplinary enquiry 9 OA No.200/00611/2016 in his Defence brief and in his representation on the Inquiry Report. So, raising issues like I.O. failed to maintain proper procedures in conducting the inquiry proceedings and acted as per his whims, at the revisionary stage, does not merit consideration. Further, in the statements of Shri Deepak Kumar Mankar (PW) and Shri Rajeshwari Prasad, Defence Witness, there were some grammatical errors which have been corrected and the persons present on the particular hearing have put their signature on the same including the petitioner. Thus, the contention that the statements of Shri Deepak Kumar Mankar and Rajeshwari Prasad were cutted/amended and the Inquiry Officer did not sign at the appropriate place, is absolutely misplaced from the facts borne on record and therefore does not merit consideration.
(11) Further, the documentary evidence held in the case confirms that on date 04.12.2010 i.e. on the day of the incident, the duty of the petitioner was from 9.30 AM to 6.30 PM. Also, as per duty allotment, the petitioner was detailed to be present in front of the Admin Bldg. in the GM's porch where Kamgar Union of the factory was to submit a Memorandum to the Senior General Manager. Thereafter, from 3.30 PM on the same day, the petitioner was allotted duty of "Eastland Area Round". The duty chart of 04.12.2010 as prepared by the Security Office of the factory confirms the duty allotment of the petitioner on the particular day. In this context, PW-01 and PW-02 had specifically deposed before the Court of Inquiry during the proceedings held on 23.12.2013 that the Petitioner was found in the Eastland Area at around 1215 hrs. PW-1 had also deposed that the Petitioner was in civil dress. From the above, it is evident that the Petitioner had to be present inside the factory (OFK) on 04.12.2010 before 3.30 PM but, was found in the jungle area of Eastland. The Senior Security Officer of the factory had accordingly reported the matter to the Disciplinary Authority for necessary action. Thereafter, charge-sheet dated 16.12.2010 was issued. All the three charges, as levelled, had been established as proved against the petitioner by the petitioner's conduct at the material point of time. Therefore, the contention of the petitioner that on 04.12.2010 he had performed his allotted duty perfectly is not based on the documentary evidence and is thus not maintainable.
Page 9 of 14Sub: Disciplinary enquiry 10 OA No.200/00611/2016 (12) From the above, it would be seen that throughout the disciplinary proceedings, including the inquiry proceedings, the petitioner was provided with reasonable opportunity to present his defence but had failed to come out with any convincing justification to refute the charges. In course of inquiry proceedings, the prosecution witnesses were examined and were cross-examined by the Defence. In the instant petitioner, Shri Shiv Dayal has raised the issue of date and time of the photograph. In this context, it is noted that in course of Court of Inquiry proceedings both the prosecution witnesses have categorically deposed that the photograph was taken on the day of the incident i.e. 04.12.2010. As such, the personal depositions of the witnesses is considered to be more authentic than the date and time shown on the photograph. Also the petitioner and his Defence Assistant were present in each and every hearing of the Court of Inquiry and there was no objection raised by them at the material point of time. Over and above this, the relevant proceedings of the Court of Inquiry were duly signed by the petitioner and his Defence Assistant which implies that the depositions were accepted by them. Thus, raising the issue at the appellate stage has no credence.
(13). Also, it is seen that the petitioner is working in the factory in the capacity of a Durwan. Being a Security personnel, the nature and gravity of misconduct committed by the petitioner in the instant case were quite serious. But, the Disciplinary Authority has taken an extremely lenient view while deciding the instant disciplinary case and had imposed the penalty under appeal.
(14). It is observed that while imposing the penalty under revision the procedure laid down under the CCS(CC&A) Rules, 1965, have been followed. The petitioner was afforded with reasonable opportunity to present his defence but failed to come out with any convincing justification in rebuttal of the charges. However, the penalty imposed by the Disciplinary Authority which is under revision is already a lenient one considering the nature and gravity of misconduct committed by the petitioner as brought out in the charge- memo dt.16.12.2010. Furthermore, there had been no denial of natural justice to the petitioner throughout the entire disciplinary proceedings. Therefore, the penalty imposed by Page 10 of 14 Sub: Disciplinary enquiry 11 OA No.200/00611/2016 the Disciplinary Authority does not warrant any interference at the revisionary stage. Also, the facts and circumstances of the case, the conclusively proven misconduct on the part of Shri Shiv Dayal, the petitioner, and the lenient and considered view already extended by the Disciplinary Authority in course of deciding the disciplinary case, do not warrant the need for granting a personal hearing to the petitioner. The request in this regard, therefore does not deserve consideration.
(15). For the reasons stated above, the Petition dt.05.02.2015 is found to be devoid of merit. The same is therefore rejected".
11. On perusal of the above speaking order of the revisionary authority minutely, we find that the allegations raised by the applicant in the instant Original Application, regarding the conduct of enquiry, have been duly considered in the said order.
12. The reliance placed by the learned counsel for the applicant on the decision of Jai Bhagwan (supra) and Suresh Chand Upadhyay (supra) is not applicable in the present case, as all the concerned evidence was duly examined by the enquiry officer in the instant case.
13. Law relating to scope of judicial review in disciplinary proceedings is well settled by Hon'ble Supreme Court in B.C.Chaturvedi Vs. Union of India, (1995) 6 SCC 749 : 1996 SCC (L&S) 80, wherein it has been observed as under :-
Page 11 of 14Sub: Disciplinary enquiry 12 OA No.200/00611/2016 "(12). Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power, and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceedings.
Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. When the authority accepts the evidence and the conclusion receives supports therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to re-appreciate the evidence or the nature of punishment. The Court/Tribunal in its power of judicial review does not act as appellate authority to re- appreciate the evidence and to arrive at its own independent findings on the evidence....."
(13). The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co- extensive power to re-appreciate the evidence or the nature of punishment. In disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C.Goel (1964) 4 SCR 718: AIR 1964 SC 364, this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.
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Sub: Disciplinary enquiry 13 OA No.200/00611/2016
(18)...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, can not 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 authority/ appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof".
(emphasis supplied)
14. In the aforementioned judgment the Hon'ble Supreme Court has specifically held that neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceedings. Further, adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. When the authority accepts the evidence and the conclusion receives supports therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge.
15. In the instant case we find that while imposing the penalty the disciplinary authority has duly followed the procedure laid down under the CCS(CC&A) Rules, 1965. The applicant was Page 13 of 14 Sub: Disciplinary enquiry 14 OA No.200/00611/2016 afforded full opportunity to present his defence. The revisionary authority has rightly observed that the penalty imposed by the disciplinary authority is already a lenient one considering the nature and gravity of misconduct committed by the applicant. Since there was no denial of natural justice to the applicant throughout the entire disciplinary proceedings, and the penalty imposed by the disciplinary authority does not warrant any interference, we do not find any ground to interfere with the impugned orders.
Accordingly, the reliefs sought for by the applicant cannot be granted to him.
16. In the result, the Original Application is dismissed, however, without any order as to costs.
(Ramesh Singh Thakur) (Navin Tandon)
Judicial Member Administrative Member
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