Central Administrative Tribunal - Kolkata
Goutam Tarafder vs D/O India Post on 30 September, 2022
~ : 1 : otk i . 'a _ - CENTRAL ADMINISTRATIVE TRIBUNAL KOLKATA BENCH KOLKATA No.0.A.350/741/2021 0.A.350/2012/2021 Date of order: 30 °9:22° Coram : Hon'ble Mrs. Bidisha Banerjee, Judicial Member Hon'ble Dr. Nandita Chatterjee, Administrative Member (O.A.No.350/741/2021) GOUTAM TARAFDER, Son of Late Jatindra Mohan Tarafder, aged about 59 years, (date of birth 25.09.1962), presently Working as Assistant Superintendent of Post (being demoted from Superintendent Of Post Offices in the Office of PLI-| under Punishment order dated 01.07.2020) at Shorting-ll, Kolkata RMS, Kolkata-700001, Present pay matrix VIII, residing at Tara Villa, Ghosh Para, P.O. Uttarpara, District- Hooghly, PIN-712711 and permanently Residing at 107A, Bidhan Chandra Road, P.O. Jhaljharia Railway Colony, District. Malda, Pin-732102. ses aesceneneceeens Applicant - VERSUS - - 1. Union of india through the Secretary, Ministry of Communication, Department Of Posts, Parliament Street, Dak Bhawan, Sansad Marg, New Delhi -- 110001; 2. Director General (Postal Service), Ministry Of Communication, Department of Posts, Parliament Street, Dak Bhawan, Sansad Marg, New Delhi-110001; 3. Chief Postmaster General, Department of Posts, 4" Floor, Meghdoot Bhawan, Assam Circle, Pan Bazar, Guwahati-781001; 4. Chief Postmaster General, West Bengal Circle, Department of Posts, Yogayog Bhawan, 40/C, Chittaranjan Avenue, Chandni Chawk, Kolkata-700012; 5. Postmaster General, South Bengal Region, Department of Posts, Yogayog Bhawan, 40/C, Chittaranjan Avenue, Chandni Chawk, Kolkata-700012; 6. Assistant Director of Postal Services, O/o the Postmaster General, South Bengal Region, Department of Posts, Yogayog Bhawan, 40/C, Chittaranjan Avenue, Chandni Chawk, Kolkata-700012; 7. Shri Rajeev Umrao, Inquiry Officer, Director of Postal Services, O/o the Chief Postmaster General, U.P Circle, Hazratganj, Lucknow-226001; 8. Asstt. Director General (Vig-l), Government of India, Ministry of Communications, Department of Posts, Parliament Street, Dak Bhawan, _ Sansad Marg, New Delhi-110001; peetesoesees ..Respondents 9. Smt. lla Tripathy (Banerjee), w/o Uttam Banerjee, Village & P.O. Bamundiha, Via -- Barabhum, District -- Purulia, Pin -- 723125 (Complainant & Witness No.1) 10. Shri Kartick Chandra Mahato, S/o Shri Ram Swarup Mahato, Village & P.O.- Dumurdih, via-Barabhum, District -- Purulia, Pin-723125 (Complainant & Witness No.2) seseaeeseoes Proforma Respondents (0.A.350/2012/2021) GOUTAM TARAFDER, Son of Late Jatindra Mohan Tarafder, aged about 59 years, (date of birth 25.09.1962), presently Working as Assistant Superintendent of Post (being demoted from Superintendent Of Post Offices in the Office of PLI-I under Punishment order dated 25.06.2020 at Shorting-ll, Kolkata RMS, Kolkata-700001, Present pay matrix 8, residing at Tara Villa, Ghosh Para, P.O. Uttarpara, District- Hooghly, PIN-712711 and permanently Residing at 107A, Bidhan Chandra Road, P.O. Jhaljharia Railway Colony, District. Malda, Pin-732102 - VERSUS- 1. Union of India through the Secretary, Ministry of Communication, Department Of Posts, Parliament Street, Dak Bhawan, Sansad Marg, New Delhi -- 110001; 2. Deputy Secretary (S-1), Government of India, Ministry of Communication, Department of Posts, Parliament Street, Dak Bhawan, Sansad Marg, New Delhi - 110001; 3. Directcr General (Postal Service), Ministry of Communication, Department of Posts, Parliament Street, Dak Bhawan, Sansad Marg, New Delhi -110001; 4. Assistant Director General(VIZ-I), Ministry of Communication, Department of Posts, Parliament Street, Dak Bhawan, Sansad Marg, New Delhi -110001; 5. Chief Postmaster General, West Bengal Circle, Department of Posts, Yogayog Bhawan, 40/C, Chittaranjan Avenue, Chandni Chawk, Kolkata-700012; 6. Postmaster General, South Bengal Region, Department of Posts, Yogayog Bhawan, 40/C, Chittaranjan Avenue, Chandni Chawk, Kolkata-700012; 7. Assistant Director of Postal Services, O/o the Postmaster General, South Bengal Region, Department of Posts, Yogayog Bhawan, 40/C, Chittaranjan Avenue, Chandni Chawk, Kolkata-700012; 8. Shri Kevichusa, Inquiry Authority and Director of Postal Services, O/othe Chief Postmaster General, Assam Circle, Guwahati-781001 sessasneeseses Respondents For the applicant : Mr. B.P. Manna, counsel For the respondents : Mr. K. Prasad, counsel (0.A.2012/2021) ORDER
As common question of facts and law govern these cases and identical reliefs have been preferred, these cases were heard out analogously and are being decided by this common order. For convenience, the facts are delineated from O0.A.No.350/741/2021
2. The application No.350/741/2021 is preferred to seek the following reliefs:-
"(l) Rescind/recall/withdraw the order being Annexure-A4 which is issued by the Respondent No.8 for all intents and purposes;
(i) Quash and set aside the charge memo dated 05.06.2012 (Annexure-A1) having been issued by an incompetent authority;
(it!) Quash and set aside the punishment order dated 01.08.2019(Annexure- A3) issued by the DG(Post);
(iV) Restore and fix the pay at Rs.82,600/- as on 01.08.2019 and pay the arrears thereof and refund the amount recovered from the salary of the petitioner;
(Vv) Direct the Authority to open the seal-cover and declare the petitioner promoted as Sr. Superintendent of Post Offices w.e.f. 2016 at par with his juniors for all intents and purpose;
(Vi) Fix the seniority at par with the applicant's junior and pay the consequential benefits;
(Vil) Certify and transmit the entire records and papers pertaining to the applicant's case so that after the causes shown thereof conscionable justice may be done unto the applicant by way of grant of reliefs as prayed for in (i) to (vi), above;
(Vill) Any further order/orders and/or direction or directions as to your Lordships may seem fit and proper;
(IX) Costs."
3. Brief facts of this case as set out in O.A.No.741/2021are as follows:- .
A selection was held for the post of GDSBPM, Bamundiha in 2011. A merit panel was published. An appointment letter was issued in favour of the 3 candidate in merit list, namely, Ardhendu Bikash Chowdhury as he fulfilled all criteria for selection. He joined the post of GDSBPM, Bamundiha B.O.on 13.06.2011.
The first candidate in the merit list, Smt. lla Tripathy (Banerjee) made a complaint on 16.06.2011 before the CPMG alleging irregularity in the selection. A similar complaint was made by the 2" candidate in the merit list, Shri Kartick Chandra Mahato vide his letter dated Nil and without any signature. The complaints were duly considered by the authority and the appointment of the 3 eligible candidate was cancelled.
The 3% candidate in the merit list Shri Ardhendu Bikash. Chowdhury who was appointed by the respondents, being aggrieved by his termination filed an Original Application before this Tribunal, - registered as OA No. 967 of 2011. It was disposed of on 21.06.2013 _ with the direction upon the respondents to reinstate the said Shri Ardhendu Bikash Chowdhury and to pass fresh order if the respondents so desired. Shri Ardhendu Bikash Chowdhury is still working in the department.
Meanwhile, the applicant, Goutam Tarafder was posted at Assam as Superintendent of Post Offices. The CPMG(Assam Circle) issued a charge memo under Rule 14 of CCS(CCA) Rules, 1965 to enquire into the matter. As per Postal Manual Volume III, the DG(Post) is the Appointing Authority of Postal Superintending Services (Group-B) and therefore, applicant alleges that the CPMG was incompetent to issue the said chargesheet. The DG being the Appointing and Disciplinary Authority imposed the punishment of reducing the applicant's pay by 5 stages from Rs.82,600/- to as.71,300/- with immediate effect and till his | retirement.
The applicant preferred an appeal against the order 01.08.2019 issued by the Director General (Post) on 16.09.2019, before the Hon'ble President of India through DG (Post) on the following grounds:-
(a) The chargesheet has been issued by incompetent authority and the DG is the appointing authority for the post of Superintendent of Post Offices;
(b) There is no whisper in the chargesheet regarding due approval from the Hon'sle President making the chargesheet not maintainable;
(c) Main complainants/witnesses were not examined which vitiates the enquiry proceeding;
(d) As per said procedures and rules, there are no irregularities in the selection process;
(e) When the selected candidate is continuing till date after the selection has been upheld by the Hon'ble Tribunal, the authority did not pass any fresh order as directed by the Hon'ble Court. The disciplinary proceedings against the petitioner is farcical if not intended to bypass the petitioner in matter of promotion to the post of Senior Superintendent of Post Offices due on 2016.
As the Appellate Authority sat tight over the matter, the applicant was left with no other alternative but to move an OA before this Tribunal which was disposed of on 09.09.2020 directing the Appellate Authority to dispose of the pending appeal dated 16.09.2019. The Appellate Authority passed a cryptic order dated 25.03.2021 as per advice of the UPSC rejecting the appeal on the ground that there was no new facts established. Hence the present OA No.741/2021 has been preferred,
4. . The O.A.No.350/2012/2021 has been preferred to seek the following reliefs:-
") Rescind/recall/withdraw the order being Annexure Al which is issued by the CPMG being an incompetent authority and without approval of Director General(Postal);
(il) Quash and set aside the Inquiry Report {Annexure-A2) against the void chargememo and the complainants not being included in the list of witnesses and not being examined;
(I!) Quash and set aside the punishment order dated 25.06.2020 (Annexure- A3) issued by the DG(Post) who has not issued the chargememo and punishment was _ disproportionate. Restore his scale of pay as Superintendent of Post Offices and pay all the arrears;
(IV) Quash and set aside the appellate order dated 06.10.2021 (Annexure- A4) issued by the Respondent No.2 which was issued on the basis of direction of UPSC advice;
(V) To open the seal cover and declare the petitioner as Sr. Superintendent of Post Offices (Group A) as Pay Matrix-10 w.e.f. 2016 and refix his pay accordingly;
(Vi) Fix the seniority at par with the applicant's juniors and pay all the consequential benefits.
And (Vil) Certify and transmit the entire records and papers pertaining to the applicant's case so that after the causes shown thereof conscionable justice may be done unto the applicant by way of grant of reliefs as prayed for in (i) to (vii); above.
(Vill) Any further order/orders and/or direction or directions as to your Lordships may seem fit and proper.
(IX) Costs."
5. Heard Learned Counsel for both sides and perused the record placed before us.
6. The applicant pleaded as under:- | He was appointed as Postal Assistant on 12.11.1982 through direct recruitment and posted at Malda Division. Thereafter he was promoted to the post of Inspector of Post on 03.02.1989 and posted at Berhampore, Murshidabad and further as Assistant Superintendent of Post Office on September, 2000 and joined at the headquarter at Gangtok. He was promoted as Superintendent of Post Office on ad hoc basis in the year 2010 and was confirmed in the said post in November, 2011. While serving as Superintendent of Post Office, Purulia Division, on ad hoc basis, he was directed by the higher authorities to cancel the selection of GDSBPM, Bamundiha B.O., Purulia Division for some irregularities committed by his predecessor. As per direction of the Higher Authorities, he issued notification for engagement in the post of ' GDSBPM, Bamundiha B.O. on 06.01.2011. Total 34 number of candidates applied for the said post out of which top 10 candidates were shortlisted and called for bio-data verification. As per merit list, names of the 5 candidates are the following:-
Serial Name % of Merit in | Eligibility conditions fulfilled or not No. MP
1. Smt. lla Tripathy (Banerjee) 75.75 Not fulfilled 9 2, Shri Kartick Chandra Mahato 74.62 Not fulfilled
3. Shri Ardhendu Bikash Chowdhuri 71.5 ' Fulfilled 4, Shri Abani Kanto Mahato 68.875 Not fulfilled
5. Ms. Anita Mahato 68.375 Not fulfilled on 09.06.2011 the shortlisted candidates were called for bio-data verification. Smt. Ila Tripathy (Banerjee) who ranked 1* in merit declared that she had no income of her own. Shri Kartick Ch. Mahato who ranked 2 in merit also declared that he had no income of his own and refused to take up residence in the post village. As the candidates in 1° and 2™ merit positions were not having any independent income of their own, the next candidate being 3 in position in the merit list, who fulfilled all other required terms and conditions as published in Employment Notice dated 06.01.2011, was selected for appointment in the said post.
7. At hearing, Learned Counsel for the applicant would draw my attention to the provisions as contained in relevant rules which shows that for Postal Superintendents Group 'B', the Director General of Posts is the competent authority to impose punishment including the major ones. Learned Counsel would vociferously plead that such being the position, the CPMG could not have been issued chargesheet without getting the same approved by the Director General of Posts. To that effect Learned Counsel would also place the decision in B.B. Gopinath Vs. Union of India and Others. rendered on 5" September, 2013 in Civil Appeal No.7761/2013. Hon'ble Apex Court noted therein that :-
10"Central issue that arose for consideration in these matters is whether the charge sheet issued against the applicant is without jurisdiction, in view of the fact that the disciplinary authority i.e. the Finance Minister, had not given approval for issuing the charge memo, even though he had ' given approval for initiation of major penalty proceedings against the respondents."
Having considered the provisions in Rule 14 of the Ccs(ccA) Rules which apply to the present case, Hon'ble Apex Court observed in Civil Appeal No.7761 of 2013(Arising out of SLP (C ) No.6348 of 2011) [Union of India & Others vs. B.V. Gopinath) with some other matters that, "the procedures mentioned in Rule 14 require an independent and unbiased application of mind and approval of the Finance Minister (Disciplinary Authority) directly and solely and not by any subordinate authority." Hon'ble Court noticed that Article 311(1) of Constitution of India lays down the following:-
"39. Article 311(1} of the Constitution of India ensures that no person who is a member of a civil service of the Union or an all India service can be dismissed or removed by an authority subordinate to that by which he was appointed. The overwhelming importance and value of Article 311(1) for the civil administration as well as the public servant has been considered stated and re- stated, by this Court in numerous judgments, since the Constitution came into effect on 19th January, 1950. Article 311(2) ensures that no civil servant is dismissed or reduced in rank except after an inquiry held in accordance with the rules of natural justice. To effectuate the guarantee
- contained in Article 311(1) and to ensure compliance with the mandatory requirements of Article 311(2), the Government of India has promulgated CCS (CCA) Rules, 1965.
40. Disciplinary proceedings against the respondent herein were initiated in terms of Rule 14 of the aforesaid Rules. Rule 14(3) clearly lays down that where it is proposed to hold an inquiry against a government servant under Rule 14 or Rule 15, the disciplinary authority shall draw up or cause to be drawn up the charge sheet, Rule 14/4) again mandates that the disciplinary authority shall deliver or cause to be delivered to the government servant, a copy of the articles of charge, the statement of the imputations of misconduct or misbehaviour and the supporting documents including a list of witnesses by which each article of charge is proposed to be proved. We are unable to interpret this provision as suggested by the Additional Solicitor General, that once the disciplinary authority approves the initiation _of the disciplinary proceedings, the charge sheet can be drawn up by an authority other than the disciplinary_authority. This would destroy the underlying protection quaranteed under Article 311(1) of the Constitution of India. Such procedure would also do violence to the protective provisions contained 11 under Article 311(2) which_ensures that no public servant is dismissed, removed or suspended without following a fair procedure in which he/she has been given a reasonable opportunity to meet the allegations contained in the charge sheet. Such a charge sheet can only be issued upon approval by the appointing authority i.e. Finance Minister.
8. In the aforesaid backdrop, we would discern that the Director General of Posts was the sole authority to have issued the charge sheet and to have drawn up the charges or ought to have approved the drawal charges framed against the applicant. As such, the charge sheets dated 31.05.2012/05/06.2012 and 24.04.2014 deserve to be quashed.
9. It is also to be noted that the Appellate Authority while dealing with the appeal where the applicant had expressly brought it to the -- notice of the said authority about incompetence of the CPMG to draw up charges against him in a major penalty proceeding i.e. a proceeding under Rule 14 of CCS(CCA) Rules, the Appellate Authority failed to consider the said point properly and in a very evasive way it said that the CPMG was competent to issue charge sheet against the applicant without deliberating upon the provisions or the schedule of powers. As per schedule of powers, when the Director of Postal Services is authorised to impose a major penalty upon Superintendent of Post Office, how a CPMG could exercise such power as CPMG is subordinate to the Director of Postal Services, is not comprehensible.
10. Learned Counsel for the applicant at hearing would also bring to our notice that demand of most of the additional documents as requisitioned by the charged official could not be produced by the 12 Presenting Officer in course of enquiry. To that effect Learned Counsel would place the daily order sheet No.3 dated 30.01.2017. Learned Counsel would place the decision in Roop Singh Negi reported in (2009)1 SCC(L&S) 398 to contend that purported evidence collected during investigation by the Investigating Officer against the accused, by itself could not be treated as evidence in the disciplinary proceeding.
Witnesses have to be examined to prove the said documents.
11. Learned Counsel would also place the Department of Posts' letter dated 17 September, 2003 as in WN-4 attached to the written notes of argument of the applicant, to contend that a GDS is a part time employee. The candid=te applying for the post of any category of GDS will have to supplement his income from other employment sources so as to show that he has adequate means of livelihood to support himself and his family. A certificate to this effect will have to be obtained from the candidate before he/she is given an appointment letter. Further that in terms of Para 7 under Method of Recruitment "Verification for conditions for appointment to be done prior to appointment" it has been mentioned that "One of the pre condition for appointment to the post of EDBPM and EDSPM relates to the verification of property and income" which is a pre condition for appointment and not a condition to be fulfilled post appointment. D.G.P&T's letter dated 17.09.2003 is also explicit that a declaration about "vocation and private income" has to be obtained from all categories of ED staff.. It is sine qua non to an ED/GDS appointment. Yet the applicant was charge sheeted for having 13 discarded the persons who despite having secured higher marks had failed to furnish any proof in support of their adequate means of livelihood etc.
12. Learned counse! at hearing would draw our attention to the depositions made by one, Falguni Kumar in regard to whom the applicant has been charge sheeted. Admittedly he was. unemployed when he had applied against the GDS post and the income mentioned in the application was of his father and brother. He was not willing to - reside at the Post village but decided to come from his own residence by "up down journey".
13. In regard to the allegation that the applicant had failed to impart 4 days' training, the then IPO, Purulia, West Sub Division Sri Nikhil Karmakar SW-3 has deposed that he was unable to recollect the proof at the time of training imparted to the two cases at Burda and Illoo Branch Office and that the recordings of the first day of training were obtained at the start of the training but on completion of the training no further charge reports were obtained. Learned Counsel placing the said deposition would contend that authorities have failed to prove that the applicant was at fault having not imparted 4 days' training to the selectees as there is no system of recording each of the 4 days' training.
14. Having noted that the Director General was the sole authority to issue charge memo and he could not have redelegated his power to his 14 subordinate CPMG, we are of the considered view that the charge sheets issued against the applicant should be quashed.
_ 15. However, we do keep in mind that there is limited scope of interference in departmental proceedings as discussed hereinbelow:-
In Union of India vs. H.C. Goel [(1964) 4 SCR 718, it was held:
In B.C. Chaturvedi v. Union of India & Others, (1995) 6 SCC 749, the Hon'ble Apex Court on the scope of judicial review has held as under:
"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 it 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 ve . 15 _ 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 each case."
In Moni Shankar v. Union of India and Anr. [(2008) 3 SCC 484], the Hon'ble Supreme Court held:
"17. The departmental proceeding is a quasi judicial one. Although the provisions of the Evidence Actare not applicable in the said proceeding, principles of natural justice are required to be complied with. The Court exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into_consideration and irrelevant facts have_been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to _arrive_at_its_ own conclusion on the premise that_the evidence adduced by the department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely -
preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality."
In Narinder Mohan Arya vs. United India Insurance Co.
Ltd.[(2006)4 SCC 713 it was held that:-
"26. In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angles. Despite limited jurisdiction a civil © court, it was entitled to interfere in a case where the report of the Enquiry Officer is based on no evidence. In a suit filed by a.delinquent employee ina civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it should keep in mind the following: (1) the enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry. [ State of Assam and Anr. v. Mahendra Kumar Das and Ors. [(1970) 1 SCC 709] (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice [ Khem Chand v. Union of India and Ors. (1958 SCR 1080) and State of Uttar Pradesh_v. Om Prakash Gupta (1969) 3 SCC 775]. (3) Exercise of discretionary power involve two elements (i) Objective and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. [ K.L. Tripathi v. State of Bank of india and Ors. (1984) 1 SCC 43]. (4) It is not possible to lay down any rigid rules of the principles of natural justice which depend on the facts and circumstances of each case but the concept of fair play in action is the basis. [ Sawai Singh v. State of Rajasthan (1986) 3 SCC 454] (5) The enquiry officer _is not 16 'permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject matter of the charges is wholly ittegal. [Export Inspection Council of India v. Kalyan Kumar Mitra [1987 (2) Cal. LU 344.] (6)] Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. {Central Bank of india Ltd. v. Prakash Chand Jain (1969} 1 SCR 735 and Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10]."
Yet again in M.V. Bijlani vs. Union of India & Ors. (2006) 5 SCC 88, Hon'ble Apex Court held:
MG essceeee Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi- judicial function, who upon_analysing the documents must arrive at_a conclusion that there had been g preponderance of probability to prove the charges on the basis of materials on record, While doing so, he cannot take into consideration any irrelevant fact. He cannot _refuse to consider the relevant facts, He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."
In Roop Singh Negi vs. Punjab National Bank and Others reported in (2009)2 Supreme Court Cases-570 the Hon'ble Supreme Court observed as under:
"14, Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved, The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence." .
Laying down the scope of judicial review, the Hon'ble Apex Court 'in Union of India V. P. Gunasekaran, (2015) 2 SCC 610, has further observed as under:
, 17 "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 No. | 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 exercise of its powers under Article 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."
16. In the two O.As at hand, as discussed above aberrations from prescribed procedure noticed are galore. In view of the 'egal propositions(supra) and the enumerations above, the charge sheets in both the-O.As being issued by incompetent persons, the chargesheets as well as the consequent penalty and appellate orders are quashed with liberty to the respondents to act in accordance with law.
Accordingly both the OAs stand disposed of. No costs.
\ (Dr. Nandita Chatterjee) (Bidisha Banerjee) Administrative Member Judicial Member sb