Central Administrative Tribunal - Chandigarh
Unknown vs Union Of India on 28 February, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
ORIGINAL APPLICATION NO. 685-CH of 201
Chandigarh, this the 28th day of February, 2012
CORAM:HONBLE SMT. PROMILLA ISSAR, MEMBER(A)
HONBLE MR. SANJEEV KAUSHIK, MEMBER(J)
Hushender Kumar Constable 2601/C.P. Age 42 years son of Sh. Brij Pal Singh, Resident of House NO. 159, Sector 20-A, Chandigarh.
APPLICANT
BY ADVOCATE: SHRI N.S. BAINS
VERSUS
1. Union of India, through Home Secretary, Govt. of India, New Delhi.
2. Chandigarh Administration through Home Secretary Chandigarh Administration U.T. Chandigarh.
3. Director General of Police U.T. Chandigarh.
4. Dy. Inspector General of Police, U.T. Chandigarh.
RESPONDENTS
BY ADVOCATE: SHRI K.K. THAKUR
ORDER
HONBLE MR. SANJEEV KAUSHIK, MEMBER(J):-
By means of present Original Applicant filed under Section 19 of the Administrative Tribunals Act, 1985, the applicant impugned orders dated 25th August, 2009 (Annexure A-6) passed by the Respondent no.4 (Disciplinary Authority), orders dated 4th January, 2010 (Annexure A-7) passed by Respondent no.3 (Appellate Authority) and the order dated 4.10.2010 (Annexure A-9) passed by Respondent no.2 ( i.e. Revisional Authority).
2. The brief facts of the case are that the applicant, who was working as Constable in the Special Crime Investigation Cell, Sector 24, Chandigarh was served with a show cause notice on 2nd February, 2009 on the basis of news item which appeared in the Newspaper on 30.4.2008. The applicant filed reply to the show cause notice. The respondent no.4 appointed Sh. Kewal Krishan, Inspector as an Inquiry Officer to look into the charges leveled against the applicant. The statement of witnesses were recorded. The Inquiry Officer submitted his report on 28.7.2008 (Annexure A/4). The applicant was served with a show cause notice dated 2.2.2009 for proposed punishment of dismissal from service. The respondent no.4 agree with the findings of the Inquiry Officer, but taking a lenient view reduced the penalty of punishment of dismissal to stoppage of three increments without cumulative effect vide order dated 25.9.2009 (Annexure A-6). Against the order dated 25th August, 2009 the applicant preferred a statutory appeal before the Respondent no.3, which was rejected by order dated 4th January, 2010, upholding the order of the punishing authority. Aggrieved with the order of the Appellate Authority, the applicant preferred revision petition before Respondent no.2. The Revisional Authority also vide its order dated 4th October, 2010 dismissed the revision petition. Hence the present Original Application.
3. Pursuant to the notice the respondents, appeared and resisted the claim of the applicant by filing a written statement. Under the Preliminary submissions the respondents have submitted that the Courts/Tribunals do not sit in appeal and would not interferer in matters of punishment based on preponderance of evidence, without any allegation of malafide, perverse or prejudice. It is further averred that if the findings of the inquiry officer are perverse or based on no evidence the Courts/Tribunals can interfere under the scope of judicial review. They placed reliance upon the judgment of the Honble Supreme Court in the case of Secretary to Govt. Home Deptt. and Ors. Vs. Srivaikundathan; 1998 (8) SC 470. It is further submitted that the judicial review is not akin to adjudicate on merit or re-appreciate the evidence as an Appellate Authority. Reliance has been placed upon the Judgment in the case of Govt. of A.P. and Others Vs. Mohd. Nasrullah Khan; (2006) 2 SCC 373 . With regard to the interference with the quantum of punishment the respondents relied upon the Judgment in the case of U.P. State Road Transport Corpn. And others Vs. A.K. Parul; AIR 1999 SC 1552 (from Allahabad) and Stae Bank of India Vs. Samarendra Kishore Endow (1994) 2 SCC 537 (1994 AIR SCW 1465). On merits the respondents have averred that due procedure has been adopted as stipulated under Punjab Police Rules. The applicant was provided opportunity to stake his claim against the charges levelled against him and after full-fledged inquiry the impugned order of punishment has been passed.
4. No rejoinder has been filed by the applicant.
5. We have heard Sh. N.S. Bains, learned counsel for the applicant and Sh. K.K. Thakur, learned counsel representing the respondents.
6. The learned counsel for the applicant vehemently argued that the impugned orders are illegal, arbitrary and have been passed with a malifide intention, thus they are liable to be quashed and set aside. He argued that no procedure has been adopted by the Inquiry Officer, therefore, the very basis of the impugned order i.e. Inquiry Report is liable to be set aside and consequently the order inflicting the punishment. He further urged that no document has been provided to the applicant which has been relied upon by the Inquiry Officer. Learned counsel further argued that the telephonic conversation has not been placed before the Inquiry Officer which has been taken in to account by the Inquiry Officer.
7. On the other hand, Sh. K.K. Thakur, learned counsel for the respondents stated where from the applicant stopped. He argued that no complaint has been made by the applicant showing that he has not been provided any document, which has been relied upon, for which his right has been prejudiced. He further argued that except in the O.A. no other document has been appended by the applicant whereby he informed either to the Inquiry Officer or to the Statutory Authorities that the inquiry proceedings have not been conducted in a fair manner. Learned counsel further submitted that the impugned order of punishment is valid and have been passed in accordance with the procedure as laid down in the Punjab Police Rules applicable to the U.T. Chandigarh employees. Learned counsel has produced the original file to the effect that telephonic conversation was the part of the record which was produced before the Inquiry Officer. He argued that all the allegations levelled in the O.A. are after thoughts .
8. We have considered the rival submission of the parties and have gone through the record with their able assistance.
9. The scope of judicial review in the matter of punishment is very limited. It can only be interfered if the delinquent official proves that it is as result of malafide intention or the punishment is shocking, disproportionate to the charges levelled against a delinquent official. Our view find support from the Judgment of Honble Apex Court in the case of U.P. State Road Transport Corpn. and Others (Supra). The Honble Apex Court consistently has taken the view that while exercising judicial review the Courts shall not normally interfere with the punishment imposed by the authorities and this will be more so when the Court finds the charges were proved. The interference with the punishment on the facts of this case cannot be sustained.
Aggrieved by that, this appeal is filed by the appellate. This Court consistently has taken the view that while exercising judicial review the Courts shall not normally interfere with the punishment impose by the authorities and this will be more so when the Court finds the charge were proved. The interference with the punishment on the facts of this case cannot be sustained. In State Bank of India V. Samarendra Kishore Endow (1994) 2 SCC 537:; (1994 AIR SCW 1465), this Court held that imposition of proper punishment is within the discretion and judgment of the disciplinary authority. It may be open to the appellate authority to interfere with it, but not to the High Court or to the Administrative Tribunal for the reasons that the jurisdiction of the Tribunal is similar to the powers of the High Court under Article 226. A noticed earlier, the High Court, having found the charges proved, is not justified in interfering with the punishment imposed by the disciplinary authority, particularly in this case, the respondent was once removed from service on the charge of corruption and again reinstated. On the facts, the interference by the High Court was not at all justified. Accordingly, the appeal is allowed, the order of the High Court is set aside and the writ petition filed by the respondent in the High Court stands dismissed. No order as to costs.
10. In State Bank of India Vs. Samarendra Kishore Endow (Supra), the Honble Apex Court held that imposition of proper punishment is within the discretion and judgment of the disciplinary authority. It may be open to the appellate authority to interfere with it, but not to the High Court or to the Administrative Tribunal for the reasons that the jurisdiction of the Tribunal is similar to the powers of the High Court under Article 226.
11. In Secretary to Govt., Home Deptt. And Ors. Vs. Srivaikundathan it has been held by the Honble Apex Court as under:-
3. The Tamil Nadu Administrative Tribunal has re-examined the entire evidence which was led before the Enquiry Officer and has come to the conclusion that the Enquiry Officer erred in holding the respondent guilty without examining the exact role of the respondent in respect of the escape of the prisoner. The Tribunal was not sitting in appeal over the findings of the Enquiry Officer, nor was the Tribunal required to examine the nature of evidence which was led as if it were a criminal trial. Unless the findings were perverse, or unless it was found that there was no evidence whatsoever before the Enquiry Officer, the Tribunal could not have set aside the findings of the Enquiry Officer merely by expressing dissatisfaction with the evidence which was led. In the present case, there was a clear evidence pointing to the guilt of the two employees who had not merely allowed the prisoner who was entrusted to their custody to escape, but had also lodged a false complaint in that connection. The Tribunal was not justified in setting aside the findings of the Enquiry Officer and remitting the matter as it did. State of Haryana V Rattan Singh 1977 (2) SCC 491. 4.The Tribunal was also not justified in interfering with the punishment which was imposed on the respondent. It is for the disciplinary authority to consider the punishment which should be imposed. The disciplinary authority in the present case, looking to the gravity of charges, and looking to the fact that both the respondent as well as Joseph were entrusted with the custody of the two prisoners and had been guilty of total dereliction of duty, as a result of which a life convict escaped, has imposed a somewhat lesser punishment of removal from service on the respondent. The Tribunal was wrong in saying that since the respondent had served only for a short period, he should be given another chance. The Tribunal, in a serious matter involving proper discharge of duty by a member of the Police Force, ought not to have interfered this wholly unwarranted manner with the punishment imposed. Nor was there any occasion to direct that a second chance be given to the respondent and that he should not be removed from service. Not only is the order beyond the jurisdiction of the Tribunal but is also grossly improper in a case like this. The appeal is allowed and the impugned order of the Tribunal is set aside. The application of the respondent before the Tribunal is dismissed with costs.
12. Even the scope of interfering with the findings of Inquiry Officer is very limited. If the delinquent proves that the Inquiry Officer is perverse or is based on no evidence then the scope of judicial review is there.
13. The argument advanced by the learned counsel for the applicant that no document has been provided or he was not served with a charge sheet was not raised before the Appellate Authority or before the Revisional Authority. Therefore, at this stage the applicant before this Tribunal cannot be allowed to agitate the matter which has not been taken before the Statutory Authorities. We have gone through the impugned order of punishment, Appellate order as well the order of the Revisional Authority. We have also gone through the appeal preferred by the applicant. There is not a whisper as alleged by the applicant now in the O.A. The applicant was afforded an opportunity of hearing. His statement was recorded and thereafter the Inquiry Officer holds the guilty of charges and as per the procedure the punishment was imposed. The applicant fails to point out any procedural as well as legal infirmity in the orders of punishment.
13. In view of the above authoritative judicial pronouncements on the subject, we are of the considered view that the impugned orders deserve no interference. Hence the O.A. is dismissed being devoid of merits with no order as to costs.
(SANJEEV KAUSHIK) ( PROMILLA ISSAR) MEMBER (J) MEMBER (A) Chandigarh: Dated: , 2012 `SK
Pre Delivery draft order in O.A. No. 785-CH-2011- Husender Kumar Vs. UOI & Ors. for consideration please.
(SANJEEV KAUSHIK) MEMBER (J) Dated: 27.02.2012.
Honble SMT. PROMILLA ISSAR Member (A) In this behalf the reliance is placed upon in the case of Secretary to Govt, Home Deptt. & Ors. (Supra) wherein it was held as under:-
Tribunal has re-examined the entire evidence which was led before the Enquiry Officer and has come to the conclusion that the Inquiry Officer erred in holding the respondent guilty without examination the exact role of the respondent in respect of the escape of the prisoner. The Tribunal was not sitting in appeal over the findings of the Enquiry Officer, nor was the Tribunal required to examine the nature of the evidence which was led as if it were a criminal trial. Unless the findings were perverse, or unless it was found that there was no evidence whatsoever before the Enquiry Officer, the Tribunal could not have set aside the findings of the Enquiry Officer merely be expressing dissatisfaction with the evidence which was led. In the present case, there was a clear evidence pointing to the guilt of the two employees. It is for the disciplinary authority to consider the punishment which should be imposed. 1 (OA No. 685-CH-2011 )