Central Administrative Tribunal - Delhi
Ram Kishore vs The Director on 26 November, 2013
Central Administrative Tribunal Principal Bench New Delhi O.A.No.2047/2012 Order Reserved on 02.09.2013 Order pronounced on 26.11.2013 Honble Shri V. Ajay Kumar, Member (J) Honble Shri V. N. Gaur, Member (A) Ram Kishore S/o Shri Ram Behari 1-74, Ansari Nagar New Delhi 110 029. Applicant (By Advocate: Shri Deepak Verma) Versus The Director All India Institute of Medical Sciences (AIIMS) Ansari Nagar New Delhi 110 029. The President & the Appellate Authority All India Institute of Medical Sciences (AIIMS) Ansari Nagar New Delhi 110 029. The Secretary Ministry of Health & Family Welfare Govt. of India, Nirman Bhawan New Delhi 110 001. Respondents (By Advocate: Sh. Mehmood Pracha) O R D E R By V. Ajay Kumar, Member (J):
The applicant, who is a Masalchi/Bearer in the Cafeteria of the respondent-All India Institute of Medical Sciences (AIIMS), filed the present OA questioning the imposition of the penalty of compulsory retirement on him.
2. The applicant was issued with a charge memorandum on 07.01.2008 which contains the following Article of Charge:
That the said Shri Ram Kishore while working as Masalchi/Bearer in the Cafetaria Department AIIMS stolen, two gas cylinder from the gas manifold room and taken away by 3 wheeler (Auto rickshaw) on 23.07.2006 in between 8.30 P.M. to 9.00 P.M. Shri Ram Kishore is thus responsible for gross misconduct, misbehaviour and has failed to maintain absolute integrity, devotion to duty and has acted in a manner unbecoming of an Institute employee; thereby contravening Rule 3(1)(ii)&(iii) of the CCS (Conduct) Rules, 1964 as applicable to the employees of the Institute.
3. The applicant vide his reply dated 17.01.2008 (Annexure A2 Colly.) to the said charge memorandum, denied the charges levelled against him. It was further stated in the said reply itself that the respondents earlier issued a charge memorandum dated 11.12.2006 containing identical allegations which were denied by him vide reply dated 22.12.2006 (Annexure A2 Colly.). However, the respondents, having not satisfied with the reply of the applicant, proceeded with the inquiry proceedings, and the inquiry officer, vide his report dated 05.08.2008, held that since the charged officer has admitted the Article of Charge, the charge stands proved. The first respondent-disciplinary authority, three years after submission of the inquiry report, vide the impugned order dated 15.11.2011 imposed the penalty of compulsory retirement on the applicant. The appeal preferred by the applicant vide Annexure A3 dated 14.12.2011 was rejected by the appellate authority-2nd respondent vide impugned order dated 09.05.2012.
4. Shri Deepak Verma, the learned counsel for the applicant in support of the OA averments, raised the following grounds:
The inquiry report is perverse and against to the rules and settled principles of law in respect of conducting the departmental proceedings.
The disciplinary and appellate authorities passed the impugned orders based on no evidence.
The action of the respondents is illegal, discriminatory and violative of Articles 14 and 16 of the Constitution of India inasmuch as they have not taken any action on the other persons, who are actually responsible for the misconduct alleged under the subject chargesheet.
5. The learned counsel placed reliance on the following:
2013 (2) SLJ 120 Rajender Yadav v. State of M.P. & Others.
Kuldeep Singh v. Commissioner of Police, (1999) 2 SCC 10.
R.K.Singh v. Union of India & Others, 2003 (3) ATJ 273 [OA No.103/2002 dated 02.09.2003] of the Lucknow Bench of this Tribunal.
2012 (3) SLJ 130 in Azad Singh v. Delhi Tourism and Transport Development Corporation Limited.
6. Per contra, Shri Mahmood Pracha, the learned counsel for the respondents, heavily relied on the daily order sheet dated 24.04.2008 of the inquiry proceedings and the letter of the applicant dated 23.06.2008 (Annexure R1) submits that since the applicant himself admitted before the inquiry officer on the first date of the inquiry proceedings that he was present on 23.07.2006 upto 9 PM and he was under influence of heavy liquor and as asked by Shri Prem Singh, he helped him in loading two LPG Cylinders from Gas Manifold Room to the Auto Riksha, nothing remains to the inquiry officer to further probe into the charges and hence, there is no illegality either in holding the charges are proved by the inquiry officer or in passing the impugned orders by the respondents 1 and 2.
7. Heard Shri Deepak Verma, the learned counsel for the applicant and Shri Mehmood Pracha, the learned counsel for the respondents, and have been through the pleadings on record.
8. The alleged incident of theft of two Gas Cylinders happened on 23.07.2006. It is the specific case of the applicant that the respondents initially issued a charge memorandum dated 11.12.2006 containing the similar charge which was duly denied by the applicant vide his reply dated 22.12.2006. The respondents failed to state anything about the same and it is not forthcoming whether the said charges were dropped or whether the said charge memorandum was withdrawn, reserving right to issue a fresh chargesheet. The applicant even in respect of the chargesheet dated 07.01.2008, vide his reply dated 17.01.2008, specifically denied the Articles of charges.
9. The charge leveled against the applicant is that he has stolen two Gas Cylinders from the Gas Manifold Room and taken away by an Auto Riksha on 23.07.2006. The relevant part of the short inquiry report reads as follows:
Action taken by the Inquiring Authority The Preliminary Hearing in this case was held on 24.04.2008. The Presenting Officer as well as Charged Official has attended the Inquiry proceedings in the room of Inquiry Officer on the scheduled date and time fixed vide letter No.F.Admn/Inquiry/RK/2008 dated 31.03.2008. The Charged Official was asked by Inquiry Officer as well as Presenting Officer whether he is admitted the charges framed in the charges sheet. The Charged Official stated that he admit the charges as he was involved in the theft case. He also handed over a letter dated 23.06.2008 in which he has stated that he committed his mistake and also requested that he will not repeat such activities in future. He has requested for sympathetic consideration in his case.
As the charges was admitted by the Charged Official, the inquiry proceedings were closed with the consent of the Presenting Officer and Charged Official.
Assessment and analysis of evidence Since the Charged Official has admitted the Article of Charge as contained in Annexure-I of the Charge Sheet issued to him vide Memorandum No.F.39-11/2007-Estt.II(Legal) dated 07.01.2008, during the Preliminary Hearing held on 24.04.2008, the charge against Shri Ram Kishore, Masalchi/Bearer stands proved.
10. The letter of the applicant dated 23.06.2008 (Annexure R1), which was also relied upon by the inquiry officer in his inquiry report, dated 05.08.2008 reads as follows:
To The Inquiry Officer AIIMS Sub:- Departmental Inquiry against Sh. Ram Kishore, Masalchi/Bearer under Rule 14 of the CCS (CCA) Rules, 1965.
Sir, With reference to letter No.F.Security/June, 2008 dated 12th June, 2008 received from Sh. R.S. Rawat, Security Officer/Presenting Officer on the subject cited above, I am to state that I was present on 23.7.2006 upto 9.00 PM. Sh. Prem Singh asked me to bring auto rickshaw at Kitchen Gate (Exit Gate). I was influence of heavy liquor and asked by Sh. Prem Singh to help him for loading of two LPG Cylinder in auto rickshaw. Singh I was under influence of liquor, two LPG Cylinder from gas manifold room were loaded in auto rickshaw and I unloaded two cylinders at the residence i.e. A-77, East Kidwai Nagar, New Delhi of Sh. Prem Lal.
Further, it is stated that I committed my mistake and I request in your honor that I may be excused this time and also I am stated that in future, I will not repeat such activities therefore, the case may kindly be considered on sympathetic ground.
Thanking you, Yours faithfully, Sd/-
(RAM KISHORE) Masalchi/Bearer Cafetaria, AIIMS Dated 23.6.2008.
11. From a plain reading of the above, it revealed that the applicant only stated on 24.04.2008 and also vide his letter dated 23.06.2008, that as asked by Shri Prem Singh who is a co-employee of the applicant, he brought the Auto Riksha and loaded the Cylinders therein. But the inquiry officer assumed the said statement as an admission of theft and abdicated his duty and further has not proceeded with the inquiry proceedings. Thereby the applicant lost the opportunity to defend his case by cross examining the departmental witnesses and by examining his own witnesses. The statement of the applicant that he has loaded Cylinders into the Auto at the instructions of one Shri Prem Singh and unloaded the same at the residence of the said Prem Singh, by any stretch of imagination, can be equated with the admission of the charge. Even the daily order sheet dated 24.04.2008 of the inquiry proceedings, basing on which the inquiry officer came to the conclusion that the applicant has admitted the charge does not indicate that the applicant admitted the charge of theft of Gas Cylinders. On the other hand, the statement made by the applicant on the first date of enquiry, i.e., on 24.04.2008 and the letter dated 23.06.2008 clearly indicate that he simply acted as per the instructions of Shri Prem Singh, without any intention of theft. Hence, the finding of the inquiry officer that the applicant has admitted his charge and hence, the same stands proved, is based on no evidence and hence perverse, and also against to the established procedure of the rules of the departmental inquiry and accordingly, the same liable to be set aside.
12. Further, though the applicant specifically stated that he loaded the Gas Cylinders into the Auto Riksha at the instance of one Shri Prem Singh, a Co-employee and unloaded the same at the residence of the said Prem Singh, the respondents, admittedly, not only failed to initiate any action against the said Prem Singh but also failed even to examine him before the inquiry officer, to prove the charge against the applicant.
13. In Kuldeep Singh Vs. Commissioner of Police and Others (1999) 2 SCC 10, it was held:
6. It is no doubt true that the High Court under Art. 226 or this Court under Art. 32 would not interfere with the findings recorded at the departmental enquiry by the disciplinary authority or the Enquiry Officer as a matter of course. The Court cannot sit in appeal over those findings and assume the role of the Appellate Authority. But this does not mean that in no circumstance can the Court interfere. The power of judicial review available to the High Court as also to this Court under the Constitution takes in its stride the domestic enquiry as well and it can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictate of the superior authority.
7. In Nand Kishore v. State of Bihar, AIR 1978 SC 1277 : (1978) 3 SCC 366 : (1978) 3 SCR 708, it was held that the disciplinary proceedings before a domestic Tribunal are of quasi-judicial character and, therefore, it is necessary that the Tribunal should arrive at its conclusions on the basis of some evidence, that is to say, such evidence which, and, that too, with some degree of definiteness, points to the guilt of the delinquent and does not leave the matter in a suspicious state as mere suspicion cannot take the place of proof even in domestic enquiries. If, therefore, there is no evidence to sustain the charges framed against the delinquent, he cannot be held to be guilty as in that event, the findings recorded by the Enquiry Officer would be perverse.
8. The findings, recorded in a domestic enquiry, can be characterised as perverse if it is shown that such a finding is not supported by any evidence on record or is not based on the evidence adduced by the parties or no reasonable person could have come to those findings on the basis of that evidence. This principle was laid down by this Court in State of Andhra Pradesh v. Sree Rama Rao, (1964) 2 Lab LJ 150 : AIR 1963 SC 1723 : 1964 (3) SCR 25, in which the question was whether the High Court, under Article 226, could interfere with the findings recorded at the departmental enquiry. This decision was followed in Central Bank of India v. Prakash Chand Jain, (1969) 2 Lab LJ 377 (SC) : AIR 1969 SC 983 and Bharat Iron Works v. Bhagubhai Balubhai Patel, 1976 Lab IC 4 (SC) : AIR 1976 SC 98 : (1976) 2 SCR 280 : (1976) 1 SCC 518. In Rajinder Kumar Kindra v. Delhi Administration through Secretary (Labour), AIR 1984 SC 1805 : (1985) 1 SCR 866 : (1984) 4 SCC 635, it was laid down that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man could come, the findings can be rejected as perverse. It was also laid down that where a quasi-judicial Tribunal records findings based on no legal evidence and the findings are his mere ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated.
9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.
10. A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with.
14. In Commissioner of Police, Delhi and Others v. Jai Bhagwan, (2011) 6 SCC 376, the respondent therein, at the relevant point of time, was working as a Constable in Delhi Police and was posted at the IGI Airport, New Delhi at the X-Ray Machine Belt. An allegation was made by one Mrs. Ranjana Kapoor that while being so posted there, the respondent extorted Rs.100/- by way of illegal gratification from her during the course of security check of passengers. It is alleged that Mrs. Kapoor made a complaint to one S.P.Narang, Operations Officer of Air France, who took the complainant to O.P.Yadav, Inspector, Delhi Police on duty at the Delhi Airport. It is also alleged that the complainant identified the respondent, who thereupon returned the aforesaid sum of Rs.100/- to the complainant in the presence of O.P.Yadav, Inspector and Arjun Singh, Sub-Inspector, who were also present at that time. After the inquiry, the respondent was dismissed from service. The OA filed by the respondent was dismissed whereas the Honble High Court of Delhi allowed the Writ Petition. The Honble Apex Court held that 7. .In the aforesaid judgment and order the High Court made following observations: -
"4. Undoubtedly, the charges of misuse of position and extortion are very serious charges. However, before a person is fastened with the punitive liability of charges of corruption / extortion, a proper inquiry, following the principles of natural justice has to be conducted.
5. It is well settled that the High Court or the Central Administrative Tribunal will not interfere with the findings of fact recorded at the domestic enquiry, however, if the case is a case of no evidence or the finding is highly perverse or improbable then it is the duty of the High Court and the Central Administrative Tribunal to go into the merits of the case......"
And while referring to the decision in the case of Kuldeep Singh v. Commissioner of Police reported in AIR 1999 SC 677 the High Court held that the case of the appellants herein is a case of no evidence and that there is violation of Rule 16 (iii) of the Delhi Police (F &A) Rules, 1980 (for short "the Rules") and ordered the reinstatement of respondent in service but without any back wages.
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14. In the present case, although there is some evidence that an amount of Rs. 100/- was returned by the respondent to the complainant but there is no such direct and reliable evidence produced by the appellants in the departmental proceedings which clearly prove and establish that the respondent demanded and received an illegal gratification of the said denomination. It seems that the proof of taking such illegal gratification has been drawn from the evidence of returning of Rs. 100/- to the complainant by way of a link up.
15. It also seems quite impracticable to presume that in the presence of so many passengers, the respondent could have extorted money. The allegation of receiving Rs. 100/- as illegal gratification is framed on suspicions and possibilities while trying to link it up with the instance of returning back of Rs.100/- by the respondent to the complainant. There are many other shortcomings in the entire investigation and the enquiry like the statement of Mrs. Ranjana Kapoor was not recorded by the Inspector and the Inspector also did not take down in writing and also attest the complaint made by her. The statement of S.P. Narang was also not recorded by the Inspector nor did the Inspector seize Rs.100/- note nor noted down its number. Mr. Narang was also not examined during the course of departmental proceedings. Non-examination of the complainant and P.S. Narang during the departmental proceeding has denied the respondent of his right of cross-examination and thus caused violation of Rule 16 (iii) of the Delhi Police (F & A) Rules, 1980.
16. In the absence of such a definite/clear proof supporting the case of the appellants it is difficult to draw a finding of taking illegal gratification by the respondent from the complainant. Therefore, as rightly held by the High Court the present case is a case of no evidence.
15. In the circumstances and for the aforesaid reasons, the impugned inquiry proceedings and report dated 05.08.2008 and the disciplinary authoritys Order dated 15.11.2011 and the appellate authoritys order dated 09.05.2012 are quashed and set aside, and the respondents are directed to reinstate the applicant into service forthwith. However, this order shall not preclude the respondents from proceeding with the inquiry afresh and to pass appropriate orders thereon, in accordance with law and rules. The back-wages from the date of compulsory retirement till the date of reinstatement are subject to the result of the fresh inquiry proceedings to be initiated by the respondents.
16. The OA is allowed, with the aforesaid directions. There shall be no order as to costs.
(V. N. Gaur) (V. Ajay Kumar) Member (A) Member (J) /nsnrvak/