Central Administrative Tribunal - Lucknow
Ravi Kant Pandey vs Bharat Sanchar Nigam Limited on 1 May, 2024
CAT,Lucknow Bench OA No. 332/00455 of 2013 R.K. Pandey Vs. U.O.I. &Ors.
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
Original Application No.332/00455/2013
Order reserved on: 10.04.2024
Order pronounced on: 01.05.2024
Hon'ble Mr. Justice Anil Kumar Ojha, Member-Judicial
Hon'ble Mr. Pankaj Kumar, Member-Administrative
Ravi Kant Pandey, son of Late Hari Kishsore Pandey, resident of 156,
Shankaracharya Nagar, Near Bypass, SemraGaon, P.S. Nabbasta,
District Kanpur Nagar, presently posted as Senior Telecom Office
Assistant, Bharat Sanchar Nigam Limited, Office of T.D. M.,Unnao.
.....Applicant
By Advocate: Shri Praveen Kumar
VERSUS
1. Chief Managing Director,
B.S.N.L., 20,Ashoka Road,
New Delhi.
2. Chief General Manager,
BSNL (East) Telecom Circle,
Lucknow.
3. General Manager (Finance),
BSNL U.P. (East) Telecom Circle,
Lucknow.
4. General Manager, Telecom District,
BSNL, Kanpur.
5. Shyam Kumar, son of Late Devi Prasad,
R/o Village & Post-Kainjari,
Block & Police Station-Rasoolabad,
District-Kanpur Dehat (Rama Bai Amdekar Nagar).
.....Respondents
By Advocate: Shri G. S. Sikarwar
ORDER
Per Hon'bleMr.Pankaj Kumar, Member-Administrative Page 1 of 7 CAT,Lucknow Bench OA No. 332/00455 of 2013 R.K. Pandey Vs. U.O.I. &Ors. In this case relating to punishment in departmental proceedings, the applicant has sought the following reliefs:
(A) The Hon'ble Tribunal may graciously be pleased to quash the impugned order dated 07.09.2013 passed by the opposite party No. 2 whereby the appeal preferred by the applicant has been rejected and order dated 21.02.2012 passed by the opposite party No. 3 as contained in Annexure No. A-1 and A-2 to this Original Application.
(B) Any such other order or direction which this Hon'ble Tribunal may deem just and proper in the circumstances of the case.
2. The facts of the case are that the applicant, while working as Junior Accounts Officer (JAO) in Bharat Sanchar Nigam Limited (BSNL), was proceeded against under rule 14 of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 [CCS (CCA) Rules] for irregularities noticed during the period May to July, 2004. In the enquiry, all three articles of charge were found disproved. The disciplinary authority disagreed with the findings of enquiry and asked the applicant to make a representation. The penalty of reversion from JAO to applicant's parent cadre Sr. TOA was imposed vide order dated 21.02.2012 and the applicant's appeal was rejected vide order dated 07.09.2013. Aggrieved, the applicant has preferred this OA.
3. The applicant contends that along with him, three officials were also issued charge sheet but they have been exonerated. In case of applicant, the enquiry found the charges disproved. The disciplinary authority has relied on the statement given by Shri Shyam Kumar Gupta, the security guard, even though he denied the allegation levelled against the applicant in the enquiry.
4. The respondents, on the other hand, state that Shri Shyam Kumar Gupta (SW-3) agreed that the contents of his statement are correct. Ample opportunity was given to the applicant to reply to the reasoned disagreement with the enquiry's finding recorded by the disciplinary authority. It is only when the applicant failed to submit Page 2 of 7 CAT,Lucknow Bench OA No. 332/00455 of 2013 R.K. Pandey Vs. U.O.I. &Ors. failed to submit his representation after lapse of considerable time, the order imposing punishment was passed after giving last opportunity.
5. We have heard both the parties.
6.1 The scope of judicial review of departmental proceedings have been summarized by Hon'ble Supreme Court in Union of India vs SubrataNath in Civil Appeal No. 7939-7940 of 2022 arising out of SLP (C) 11021-22 of 2022 in following terms:
"15.It is well settled that courts ought to refrain from interfering with findings of facts recorded in a departmental inquiry except in circumstances where such findings are patently perverse or grossly incompatible with the evidence on record, based on no evidence. However, if principles of natural justice have been violated or the statutory regulations have not been adhered to or there are malafides attributable to the Disciplinary Authority, then the courts can certainly interfere. .....
17. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya, a two Judge Bench of this Court held as below:
"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations."
.....
19. Laying down the broad parameters within which the High Court ought to exercise its powers under Article 226/227 of the Constitution of India and matters relating to disciplinary proceedings, a two Judge Bench of this Court in Union of India and Others v. P. Gunasekaran held thus :
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in Page 3 of 7 CAT,Lucknow Bench OA No. 332/00455 of 2013 R.K. Pandey Vs. U.O.I. &Ors.
exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
.....
22.To sum up the legal position, being fact finding authorities, both the Disciplinary Authority and the Appellate Authority are vested with the exclusive power to examine the evidence forming part of the inquiry report. On finding the evidence to be adequate and reliable during the departmental inquiry, the Disciplinary Authority has the discretion to impose appropriate punishment on the delinquent employee keeping in mind the gravity of the misconduct. However, in exercise of powers of judicial review, the High Court or for that matter, the Tribunal cannot ordinarily re-appreciate the evidence to arrive at its own conclusion in respect of the penalty imposed unless and until the punishment imposed is so disproportionate to the offence that it would shock the conscience of the High Court/Tribunal or is found to be flawed for other reasons, as enumerated in P. Page 4 of 7 CAT,Lucknow Bench OA No. 332/00455 of 2013 R.K. Pandey Vs. U.O.I. &Ors. Gunasekaran (supra). If the punishment imposed on the delinquent employee is such that shocks the conscience of the High Court or the Tribunal, then the Disciplinary/Appellate Authority may be called upon to re-consider the penalty imposed. Only in exceptional circumstances, which need to be mentioned, should the High Court/Tribunal decide to impose appropriate punishment by itself, on offering cogent reasons therefor."
(emphasis supplied) Keeping in mind the above precepts of judicial review, we now examine the merits of the case.
6.2 Perusal of enquiry report shows that there were three articles of charge against the applicant. Briefly, first article related to manipulation of priority list of SIM card distribution with ulterior motive and misplacing relevant records. Second was the failure to prepare the daily list of TR collection and get the cash deposited. Third was the failure to get supplied the consolidated statement of D/Notes. 6.3 As per the enquiry report, the prosecution's case was that SIM cards were to be distributed on the basis of 'first come, first served' as decided by GMTD, Kanpur. The applicant prepared a list of 4,984 candidates and handed it over to DE (Mobile) for distribution of SIM cards from 17.07.2004 to 23.07.2004. During the course of distribution, names of 1,247 eligible D/notes were found missing. 45 Engg-9 books were found missing. Shri Shyam Kumar Gupta, the security guard deployed for security of the counters stated that on 21.07.2004, the applicant came back to office at about 10.30 p.m. and asked him to bring some snacks. On return, Shri Gupta found the applicant keeping receipt books, registers and records in a large bag and whereupon he was instructed by the applicant to not disclose this to anyone and was offered money, whenever needed.
6.4 In the enquiry, during the course of examination by PO, Shri Gupta admitted the statement dated 27.08.2004 given before the vigilance officer, but he denied the statement of keeping receipt books Page 5 of 7 CAT,Lucknow Bench OA No. 332/00455 of 2013 R.K. Pandey Vs. U.O.I. &Ors. in the bag and offer of money by the applicant. On cross examination, he denied seeing the applicant carrying the records. During re- examination by PO, Shri Gupta could not remember certain details. In conclusion, the enquiry officer recorded that 'on the basis of objective analysis of documentary and oral evidences adduced during the enquiry, PO Brief, Defence Brief as well as the facts and circumstances brought before the IO during the inquiry proceedings', all three articles were disproved.
6.5 Coming to the memorandum dated 01.07.2008 conveying the disagreement of the disciplinary authority with the enquiry report, the disagreement was recorded in following terms:
"From the statement of Shri Shyam Kumar Gupta (SW-3), the Security Guard, it is quite clear that the charged officer has attended office at about 10.30 PM and asked him to bring Laiya, Chana and Chai from outside and on return he found that the charged officer was keeping the receipt book, register and records in a large bag on counter no. 12/13 and instructed him "not to disclose these things to any body else." Not only this, charged officer has also offered money to security guard. As such the charge is proved to this extent."
(emphasis supplied) We fail to comprehend as to how the disciplinary authority could rely upon the statement of the security guard given to the vigilance officer when that statement was modified by the security guard during examination, cross examination and re-examination in the course of enquiry. In our view, this is similar to relying on the statement of the witness given to police when the witness has modified his statement in critical aspects during the trial. Another aspect of the disciplinary authority's disagreement with the findings of enquiry which bothers us is the definitive character of the disagreement as highlighted above, contrary to the requirement of forming a tentative opinion at the disagreement stage propounded by Hon'ble Supreme Court in Punjab National Bank vs Kunj Bihari Mishra (1998) 7 SCC 84. These deficiencies have gone unaddressed in the subsequent orders of the Page 6 of 7 CAT,Lucknow Bench OA No. 332/00455 of 2013 R.K. Pandey Vs. U.O.I. &Ors. disciplinary authority and the appellate authority rendering them non est. Keeping in view of the findings of the enquiry and the basis of disagreement of the disciplinary authority, no purpose would be served by remitting the departmental proceedings to the respondents.
7. In view of the facts and circumstances of the case, the OA is allowed and the order dated 21.02.2012 passed by the disciplinary authority and the order dated 07.09.2013 passed by the appellate authority are quashed and set aside. The applicant shall be entitled to consequential benefits which shall be settled by the respondents within a period of 3 months from the date of receipt of certified copy of this order.
7.1 Pending MAs, if any, are also disposed of.
7.2 The Parties shall bear their own costs.
(Pankaj Kumar) (Justice Anil Kumar Ojha)
Member (A) Member (J)
vidya
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