Central Administrative Tribunal - Jabalpur
Rajesh Kumar Dubey vs Union Of India on 20 July, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.90 of 2010
Jabalpur, this Monday, the 20th day of July, 2015
MR. G.P. SINGHAL, ADMINISTRATIVE MEMBER
MR. U. SARATHCHANDRAN, JUDICIAL MEMBER
Rajesh Kumar Dubey, s/o Shri Ram Gopal Dubey,
Date of birth 4.1.1961, r/o 142 Shrinath Ki Talaiya,
Jabalpur. -Applicant
(By Advocate Shri S.K. Nandy)
V e r s u s
1. Union of India, Ministry of Railway,
Through its General Manager, West Central Railway,
Indira Market, Jabalpur 482001.
2. Additional Divisional Railway Manager,
O/o Divisional Railway Manager, West Central Railway,
Jabalpur 482001.
3. Sr. Divisional Mechanical Engineer,
O/o Divisional Railway Manager, West Central Railway,
Jabalpur 482001.
4. Asst. Divisional Mechanical Engineer,
O/o Divisional Railway Manager, West Central Railway,
Jabalpur 482001. - Respondents
(By Advocate Shri Swapnil Ganguly)
(Date of reserving order :14.7.2015)
O R D E R
By U. Sarathchandran, JM :-
Applicant, while working as Head Clerk (non-personnel) at Jabalpur, was served with the Annexure A-1 minor penalty chargesheet. On receipt of the same, he made a representation and thereafter it was decided by the Disciplinary Authority to conduct inquiry into the charges leveled against the applicant.
2. The charge against the applicant was that on 6.2.2007 and 10.02.2007 he had received used linen from the AC coaches of Train No.1448 and 2190 which consisted of 962 bed sheets, 481 face towels and 481 pillow covers. He was held responsible for the loss of the same as he did not keep the same safe in the linen room. On his representation vide Annexure A-5, Disciplinary Authority decided to conduct departmental inquiry and appointed inquiry officer who submitted Annexure A-9 report holding that the charges against the applicant had been proved. The Disciplinary Authority passed Annexure A-2 order finding him having violated rule 3.1 (i), (ii) and (iii) of the Railway Servants (Discipline & Appeal) Rules, 1966, imposing penalty of stoppage of increments for three years with cumulative effect and for recovering Rs.1,32,505.88/- from his salary in suitable installments. The applicant took the matter on appeal. The Appellate Authority, confirming the decision of the Disciplinary Authority, dismissed the appeal by upholding the Annexure A-3 order. Applicant filed revision before the DRM/Revisionary Authority, who also confirmed decisions of the Disciplinary Authority and the Appellate Authority, however, reduced the punishment to withholding of increment for one year with non-cumulative effect, but upheld the order of recovery of Rs. 1,32,505.88/- from the applicant. Applicant having been aggrieved by the aforesaid orders of the authorities passed in the disciplinary proceedings against him has approached this Tribunal seeking the following relief:
(i) Summon the entire relevant record from the respondents for its kind perusal;
(ii) Set aside the charge-memorandum dated 8.3.2007 Annexure A/1, punishment order dated 6.12.2007 Annexure A/2 and appellate authoritys order dated 22.9.2009 Annexure A/3; and revisional order dated 28.10.2009 Annexure A/4 and direct the respondent to return the applicant the amount already recovered from him with interest.
(iii) Consequently, provide all consequential benefits to the applicant as if the impugned orders aforesaid are never passed;
(iv) Any other order/direction may also be passed.
(v) Award cost of the litigation in favour of the applicant.
3. The applicant objected to the disciplinary action mainly on the ground that he had not been given opportunity to defend the case in the inquiry proceeding with the assistance of defence assistant. It is further alleged that the inquiry officer had been biased and despite his request for change of inquiry officer, Disciplinary Authority did not accede to it. It is further contended by the applicant that the inquiry officer and the Disciplinary Authority had not adverted to the statements made by some staff that the soiled linen was entrusted to the washing contractor. According to applicant, the Appellate Authority also had not considered this contention in his appeal. For the same reasons, the applicant is aggrieved by the decisions taken by the Revisional Authority also.
4. Respondents-Railways contended that since the applicant was responsible for the safe keeping of the linen items in the linen room, he was charged for misappropriation/embezzlement for the missing linen which has caused financial loss to the Railways. According to respondents all the required documents were supplied to the applicant but he made an unreasonable demand of authenticated copies of the documents. It is further submitted by the respondents that a request was made by the applicant to appoint Shri G.N. Kumar as defence assistant only on 28.7.2007 and prior to that there was no effort made by the applicant to nominate a defence assistant. As Shri G.N. Kumar was already having more than 7 cases posting him as defence counsel, as per the extant administrative instructions he could not be permitted to be appointed as defence assistant. According to the respondents the allegation that the order of the Appellate Authority was not speaking one and similarly the order of the Revisional Authority also was not a speaking order is not true. Respondents contended that the applicant was given adequate opportunity during the disciplinary proceedings for defending his case and therefore there is no violation of the principles of natural justice. According to the respondents, the Railway is bound to recover the loss caused due to fault of the applicant in the safe keeping of the linen.
5. A rejoinder was filed by the applicant reiterating his contentions and stating that the loss has been caused due to the negligence of the washing contractor and the applicant was made a victim to it. It is also stated by the applicant that the respondents have made a demand for recovery of the lost linen to the washing contractor vide letter dated 24.6.2008.
6. Respondents filed an additional reply stating that though such demand was made to the washing contractor, nothing could be recovered from him. Therefore, respondents pray for rejecting the O.A.
7. We have heard Shri S.K. Nandy, learned counsel for the applicant and Shri Swapnil Ganguly, learned counsel for the respondents.
8. The scope of judicial review in disciplinary matters has been repeatedly explained by the Honble Apex Court. In B.C. Chaturvedi v. Union of India and others, 1996 Supreme Court Cases (L&S) 80, it was held pithly:
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 proceeding. Adequacy of evidence 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 support therefore, 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 reappreciate the evidence or the nature of punishment. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evident. 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 conclusion or the finding, and mould the relief so as to make it appropriate to the facts of that case.
9. In Damoh Panna Sagar Rural Regional Bank and another v. Munna Lal Jain, (2005) 10 Supreme Court Cases 84, the Honble Apex Court held as under:
10. Lord Greene said in 1948 in the famous Wednesbury case2 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 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 of Civil Service Unions v. Minister for Civil Service3 (called CCSU case) summarized the principles of judicial review of administrative action as based upon one or the other of the following viz. illegality, procedural irregularity and irrationally. [see: 2. Associated Provincial Picture Houses v. Wednesbury Corpn., (1948) 1 KB 223] [3.1985 AC 374 : (1984) 3 All ER 935 (HL)]
10. In the matter of judicial review relating to the administrative decision of awarding punishment, the Honble Apex Court in Union of India v. K.G. Soni, 2006 Supreme Court Cases (L&S) 1568 held as under:
14. The common thread running through in all these decisions is that the court should not interfere with the administrators decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case3, the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in the decision-making process and not the decision. [see: 3. Associated Provincial Picture Houses v. Wednesbury Corpn., (1948) 1 KB 223]
11. One of the issues we need to consider in this O.A is whether there was violation of rules of natural justice or violation of statutory rules prescribed in mode of inquiry. On perusal of the record and the inquiry report, we find that adequate opportunity was given to the applicant for presenting his case. Though the applicant alleges that he was not given assistance of a defence assistant, respondents explained that applicants request for defence assistant came much at a later stage and that the person nominated by him could not be provided to assist him as the latter had already six cases being dealt with by him. According to respondents, as per the extant instructions, a defence assistant cannot be permitted to appear in more than six cases at a time. We do not find any fault with the respondents in taking such stand. We have also noted that the applicant had made attempts to change the inquiry officer which also was promptly rejected by the Disciplinary Authority. It is trite that the inquiry officer is only a representative of the Disciplinary Authority and that if necessary, Disciplinary Authority could himself conduct inquiry. Therefore, the allegations leveled against the inquiry officer also appear to be unfounded.
12. The next allegation against the disciplinary action is that the Disciplinary Authority had arrived at a decision imposing the penalty based on inadequate materials. We are not expected to examine the adequacy of evidence or to reappreciate the evidence or the nature of punishment. While exercising the power of judicial review, we need to examine only whether the finding made by the Disciplinary Authority is based on some evidence. In this case we are unable to come to a conclusion that the Disciplinary Authority arrived at its conclusion/finding based on no evidence or on irrelevant materials. The fact that applicant was responsible for receiving and keeping the soiled linen in the linen room and for entrusting the same to the washing contractor is undisputed and the loss of the linen actually takes the wind out of the sails of the applicant because responsibility for keeping of the linen till it is handed over to the washing contractor squarely rests with him. In the above circumstances, we do not find any merit in the contentions of the applicant.
13. The next question is to be examined is whether the punishment imposed was disproportionately excessive so as to shock the judicial conscience. The penalty imposed by the Disciplinary Authority was stoppage of increments for three years with cumulative effect and recovery of the value of the loss to the tune of Rs.1,32,505.88/-. This penalty has indeed been reduced by the Revisional Authority though the Appellate Authority confirmed the Disciplinary Authoritys order. According to the Revisional Authority, the penalty of stoppage of increment for three years with cumulative effect was excessive, and hence he in the fitness of things has reduced it to stoppage of increment for one year without cumulative effect but retained the order of recovery of Rs.1,32,505.88/-. We do not find anything disproportionate in this penalty imposed.
14. In this case, Railway has lost 962 bed sheets, 481 pillow covers and 481 towels. The Railway has quantified the loss to the tune of Rs.1,32,505.88/-, which we do not find any reason to discredit. In our view, the punishment imposed by the authorities does not appear to be excessive. Since the applicant was responsible for safe keeping of linen received by him, he could not escape from the responsibility when the same was lost/missing. Hence the recovery of the loss ordered against the applicant is only to be justified.
15. In the result, we dismiss the O.A. No order as to costs.
(U. Sarathchandran) (G.P.Singhal) Judicial Member Administrative Member am 7 OA 90/2010 Page 7 of 7