Central Administrative Tribunal - Delhi
Madan Lal vs M/O Urban Development on 2 September, 2016
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(OA No.312/2013)
Central Administrative Tribunal
Principal Bench
New Delhi
OA No.312/2013
MA No.341/2013
Order Reserved on:29.08.2016
Pronounced on:02.09.2016.
Hon'ble Mr. Justice M.S. Sullar, Member (J)
Hon'ble Mr. K.N. Shrivastava, Member (A)
Madan Pal
Mechanic
Hindan Central Elect Div (CPWD)
Hindan Air Field, Hindan,
Ghaziabad.
- Applicant
(By Advocate Shri Padma Kumar S.)
Versus
1. Union of India
Through, Secretary
Ministry of Urban Development
Nirman Bhawan, New Delhi-11
2. Director General, CPWD
Nirman Bhawan
New Delhi-110011.
3. Chief Engineer ,
New Delhi, Zone-8,
CPWD; East Circle-3
Ramakrishna Puram, New Delhi-66.
4. Superintending Engineer (E )
Outer Delhi Elect. Circle, CPWD
R.K. Puram, New Delhi
5. Executive Engineer (E )
Hindan Central Elect. Division
Hindan (Ghaziabad).
- Respondents
2
(OA No.312/2013)
(By Advocate Shri Susheel Sharma)
ORDER
Mr. K.N. Shrivastava, Member (A):
This Original Application (OA) has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985. The reliefs prayed for by the applicant in the OA read as under:
"(a) Quash and set aside the Order dated 25.3.2009 and 15.5.2012.
(b) Direct the Respondents to release all the consequential benefits from (a) above.
(c ) Any other relief which this Hon'ble Tribunal may be pleased to pass under the facts and circumstances of the case."
2. The brief facts of the case are as under. 2.1 The applicant is working as a Mechanic in CPWD. On the charge that he had misbehaved with Smt. Kumud Gautam, LDC working in the CPWD, a major penalty charge- sheet under Rule 14 of CCS (CCA) Rules, 1965 came to be issued to the applicant vide OM dated 28.12.2007. The Enquiry Officer (EO) concluded that the charge against the applicant stood proved. Accordingly, the Disciplinary Authority (DA) vide order dated 25.03.2009 imposed the penalty of reduction of pay by two stages for two years w.e.f. 01.04.2009 with cumulative effect and with a stipulation that the applicant will not earn increment of pay during the period 3 (OA No.312/2013) of reduction and that on the expiry of the period, the reduction will have no effect of postponing his future increments of pay. The applicant challenged the punishment order passed by the DA before the departmental Appellate Authority (AA). The appeal was dismissed by the AA vide order dated 11.08.2009.
2.2 Aggrieved by the orders of the DA and AA, the applicant filed OA no.2460/2011 before this Bench of the Tribunal. The Tribunal disposed of the said OA on 27.02.2012. The Tribunal in its order stated that the requirement of Rule 27 (2) of CCS (CCA) Rules, 1965 has not been complied with by the AA, wherein it is clearly stipulated that the order of the AA should be a speaking order. The said rule is reproduced below:
"27(2) In the case of an appeal against an order imposing any of the penalties specified in Rule11 or enhancing any penalty imposed under the said rules, the Appellate Authority shall consider-
(a) whether the procedure laid down in these rules has been complied with and if not, whether such non-
compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;
(b) whether the findings of the Disciplinary Authority are warranted by the evidence on the record; and
(c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe; and pass orders-
(i) conforming, enhancing, reducing, or setting aside the penalty; or
(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of these cases." 4
(OA No.312/2013) 2.3 The Tribunal had placed reliance on the judgment of the Hon'ble Supreme Court in the case of Divisional Forest Officer, Kothagudem & others v. Madhusudhan Rao, [(2008) 1 SCC (L&S) 788, the relevant part of which reads thus:
"20. It is no doubt also true that an appellate or revisional authority is not required to given detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interest of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum."
2.4 The operative part of the Tribunal's order reads as under:
"9. The ratio as laid down by the Apex Court in the aforesaid case is squarely applicable in the facts and circumstances of the present case. Accordingly, the impugned orders 11.8.2009 (Annexure A-2) and dated 30.3.2011 (Annexure A-3) passed by the appellate as well as revisional authorities respectively are quashed and set aside. Since there being no compliance of Rule 27(2) of CCS (CCA) Rules, 1964, the matter is remitted back to the appellate authority to pass fresh order keeping in view the mandate of Rule 27 (2) of CCS (CCA) Rules, 1964 and the contentions raised by the applicant in his appeal and pass a reasoned and speaking order within a period of three months from the date of receipt of a copy of this order."
2.5 In compliance of the direction of this Tribunal contained in order dated 27.02.2012 in OA-2460/2011, the AA has passed a fresh order dated 15.05.2012 (Annexure A-1 Colly.), the relevant extract of which is reproduced below:
"In compliance to thereof, the appeal of Shri Madan Pal, Mechanic (AC&R) dated 08.5.2009 is reconsidered by me as Appellant Authority as follow:-5
(OA No.312/2013)
(a) Memo of Chargesheet issued to Shri Madan Pal, Mechanic (AC&R), HCED was under Rule 14 of CCS(CCA) Rules, 1965, and due process of appointing Inquiry officer and conducting the inquiry on the charges has been followed. Copy of the Inquiry Report has been duly sent to the Charged Officer on 06.1.2009. The Representation of Shri Madan Pal, Mechanic (AC&R), HCED dated 17.01. 2009 has also been duly considered by the disciplinary authority in para 7 of his order dated 25.3.2009 before arriving at the conclusion of charge of mis-conduct being proved, and deciding to impose the penalty as per the order dated 25.03.2009. On perusal of all the documents of the case, I conclude that due process and procedure as laid in the CCS(CCA) Rules 1964 has been followed and no violation of any provisions of the Constitution of India or failure of justice has taken place.
(b) On perusal of all the documents of the case, I have also concluded that findings of the disciplinary authority are commensurate with the evidences on record. (c ) On review of the penalty imposed by the disciplinary authority, I find that penalty to be reasonable with respect to the mis-conduct.
I, therefore, confirm the penalty imposed by the disciplinary authority vide his Office Order No.7(4)/ODEC/E-II/2008- 09/112 dated 25.03.2009."
2.6 The applicant in this OA has challenged the Annexure A-1 punishment order dated 25.03.2009 passed by the DA and fresh Annexure A-1 Colly. Order dated 15.05.2012 passed by the AA. He has prayed for quashing and setting aside of both these impugned orders.
3. Pursuant to the notices issued, the respondents entered appearance and filed their reply. The applicant thereafter filed his rejoinder. With the completion of the pleadings, the case was taken up for hearing the arguments of the parties on 29.08.2016. Shri Padma Kumar S., learned counsel for the applicant and Shri Susheel Sharma, learned counsel for the respondents argued the case.
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(OA No.312/2013)
4. The learned counsel for the applicant submitted that the complainant Mrs. Kumud Gautam was not examined by the EO during the course of enquiry nor a copy of the Preliminary Enquiry (PE) report was made available to the applicant during the enquiry. For these reasons, the applicant's case has been severely prejudiced. The learned counsel placed reliance on the following judgments of the Hon'ble Supreme Court in support of his contention:
1. Hardwari Lal Vs. State of UP & Ors. [2000(1) ATJ page 244].
2. Teni Ram Vs. State Vs. State of Jharkhand [WP (C ) No.3413/2015].
3. Nirmala J. Jhawa Vs. State of Gujarat & Anr [(2013) 4 SCC 301].
4. A.M. Sugunasundaram Vs. Syndicate Bank,[ ILR 2001 Kar 4052].
5. Ministry of Finance and Anr Vs. S.B. Ramesh, [(1998) 3 SCC 227].
6. Divisional Forest, Officer, Kothagudem & Ors Vs. Madhusudhan Rao, [(2008) 3 SCC 469].
4.1 Concluding his arguments, the learned counsel for the applicant submitted that for the reasons stated by him, the enquiry should be construed as flawed and the prayer made in the OA may be allowed.
5. Per contra, the learned counsel for the respondents denied the allegation that a copy of the PE report was not 7 (OA No.312/2013) given to the applicant during enquiry. It was also submitted that the applicant was so incorrigible that he continued to misbehave with the complainant Smt. Kumud Gautam even after the intervention of some of the co-workers. In this connection, he drew our attention to Annexure R-5. The learned counsel further stated that the applicant has attempted to raise all those issues which he had raised in his earlier OA-2460/2011, which were duly considered by the Tribunal while passing order dated 27.02.2012 in the said OA. He said that the Tribunal had remanded the case to the AA only on the ground that the requirement ordained in Rule 27 (2) of CCS (CCA) Rules, 1965 had not been complied with.
The AA has now duly complied with the requirement of Rule 27 (2) of the CCS (CCA) Rules, 1965 and has passed a fresh order dated 15.05.2012 (Annexure A-1 Colly.). He stoutly argued for dismissal of the OA.
6. We have considered the arguments put-forth by the learned counsel for the parties and have also perused the pleadings and documents annexed thereto. The Tribunal had set aside the earlier order of the AA dated 27.02.2012 on the sole ground that the requirement of Rule 27 (2) of CCS (CCA) Rules, 1965 has not been duly complied with by the AA while passing its earlier order dated 11.08.2009. In this connection, the Tribunal had also placed reliance on the 8 (OA No.312/2013) judgment of the Hon'ble Supreme Court in the case of Madhusudhan Rao (supra).
7. The AA has now passed the fresh order duly complying with the requirement of Rule 27 (2) of the CCS (CCA) Rules.
8. The scope of judicial review in departmental enquiry matters is very limited. The Hon'ble Apex Court, defining the scope of judicial review in the matter of disciplinary proceedings, in B.C. Chaturvedi v. Union of India & Others, [(1995) 6 SCC 746], has laid down the following principle for intervention of Courts/Tribunals:
"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 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 proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. 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. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the 9 (OA No.312/2013) conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case."
9. After perusal of the record, we are fully convinced that due process of law has been followed by the respondents in the conduct of the DE proceedings against the applicant. Principles of natural justice have been observed at every stage of the proceedings. As such, we do not find any deficiency, infirmity or perversity in the impugned orders passed by the DA and AA. We, therefore, dismiss the OA, terming it devoid of merit.
10. No order as to costs.
(K.N. Shrivastava) (Justice M.S. Sullar) Member (A) Member (J) 'San.'