Central Administrative Tribunal - Delhi
Wazir Singh Mour vs Union Of India on 12 November, 2010
Central Administrative Tribunal Principal Bench O.A. No.1817/2010 New Delhi, this the 12th day of November, 2010 Honble Mrs. Meera Chhibber, Member (J) Honble Dr. A.K. Mishra, Member (A) Wazir Singh Mour S/o Shri Indar Singh R/o 406, DDA, LIG Flats, Hastal, Uttam Nagar, New Delhi-110 059. ..Applicant Assistant Library and Information Officer, Ministry of External Affairs, CPP Division, Patiala House Annexe, New Delhi. By Advocate: Shri P.K. Dhayani. Versus Union of India Through Secretary, Ministry of External Affairs, South Block, New Delhi. Respondents By Advocate: Shri A.K. Bhardwaj with Ms. Jaishri Raj. O R D E R By Honble Mrs. Meera Chhibber, Member (J) :
Applicant has challenged order dated 30.12.2009 whereby he has been removed from service (page 111), order dated 12.2.2010 whereby his appeal was rejected as not maintainable and order dated 15.3.2010 (page 55) whereby his review has been rejected.
2. It is submitted by the applicant that he was appointed as Library Assistant in the Ministry of Economic Affairs in the year 1980. In 1984 he joined the Ministry of External Affairs. In March, 2008 applicants son received a cricket ball injury on his mouth. He did not have enough balance in his account, therefore, applicant went to U.K. to help him. A show cause notice was issued to the applicant on 6.6.2008 to explain as to why disciplinary proceedings should not be initiated against him. It was duly replied by the applicant. Nothing was done on that. Subsequently, applicant remained absent from duty w.e.f. 19.9.2008 to 5.10.2008 as he was not keeping good health. He applied for medical leave on 20.10.2008. Instead of regularizing the leave memorandum dated 5.1.2009 was issued to the applicant containing 4 charges against the applicant. Applicant denied those charges initially. However, during the enquiry, applicant was assured that in case he admits all the charges, sympathetic view would be taken, therefore, on the basis of assurance given to him and to shorten the enquiry, applicant admitted the charges. Once again he did not hear anything from the authorities. Without even serving copy of the enquiry report on him, respondents removed him from service vide OM dated 30.12.2009. Being aggrieved, he filed an appeal, which was rejected as not maintainable on 12.2.2010. Within one month respondents rejected the claim of the applicant but it is para wise reply of the appeal and cannot be termed as an order. It shows total non-application of mind on the part of the respondents.
3. Counsel for the applicant relied on the judgments of Honble Supreme Court in the case of Union of India Vs. Mohd. Ramzan Khan reported in 1991 (1) SCC 588 and Managing Director, ECIL Vs. B. Karunakar reported in 1993 (4) SCC 727.
4. Respondents on the other hand have opposed this OA. They have stated, in response to the charge sheet, applicant had initially denied the charges, therefore, enquiry was ordered. However, before the IO applicant accepted all the charges unconditionally and in absolute terms in writing, therefore, this was recorded by the IO and Articles 1 to 4 were held to be proved. Since applicant had specifically admitted the charges, there was no need to serve the enquiry report on him. The case record was sent to the UPSC who advised imposition of punishment of removal from service. The said advice was accepted and applicant was removed from service. Applicant filed an appeal dated 19.1.2010 against the said order in which he stated that copy of the enquiry report was not served on him, therefore, copy of the report was given to him and his appeal was treated as a review. Nothing new was stated by the applicant in his appeal, therefore, after referring to all the contentions his review was rejected.
5. As far as non-supply of copy of enquiry report is concerned, it is stated no prejudice has been shown to have been caused to the applicant. They have specifically denied the allegation of the applicant that any assurance was given by the Ministry to the applicant. They have prayed that the OA may be dismissed.
6. We have heard both the counsel and perused the pleadings as well.
7. It is submitted by the applicant that since copy of enquiry report was not served on him, the order of penalty would get vitiated and is liable to be quashed. Perusal of the records show applicant was served with memorandum dated 5.1.2009 with the following articles of charges:-
ARTICLE-I That the said Shri Wazir Singh Mour, Assistant Library and Information Officer, was on unauthorized absence from duty during the period from 10 March 2008 to 07 April, 2008.
By the above act the said Shri Wazir Singh Mour, Assistant Library and Information Officer, had shown lack of devotion to duty and exhibited conduct unbecoming of a Government servant thereby violating the provisions of Rules 3(1)(ii) and 3(1)(iii) of CCS (Conduct) Rules, 1964.
ARTICLE-II That the said Shri Wazir Singh Mour, Assistant Library and Information Officer, was on unauthorized absence from duty during the period from 11 April 2008 to 30 July, 2008. The unauthorized leave was spent by Shri Mour in London. Shri Mour proceeded to London without informing the Ministry of External Affairs and no ex-India leave was sanctioned by the Ministry of External Affairs.
By the above act the said Shri Wazir Singh Mour, Assistant Library and Information Officer, had shown lack of devotion to duty and exhibited conduct unbecoming of a Government servant thereby violating the provisions of Rules 3(1)(ii) and 3(1)(iii) of CCS (Conduct) Rules, 1964.
ARTICLE-III That the said Shri Wazir Singh Mour, Assistant Library and Information Officer, was on unauthorized absence from duty during the period from 18 September 2008 to 05 October, 2008. The unauthorized leave was spent by Shri Mour at a place called Hansi, near Hissar, Haryana. Shri Mour did not seek permission to leave the station from the competent authorities in the Ministry of External Affairs, before proceeding to Hansi.
By the above act the said Shri Wazir Singh Mour, Assistant Library and Information Officer, had shown lack of devotion to duty and exhibited conduct unbecoming of a Government servant thereby violating the provisions of Rules 3(1)(ii) and 3(1)(iii) of CCS (Conduct) Rules, 1964.
ARTICLE-IV That the said Shri Wazir Singh Mour, Assistant Library and Information Officer, was on unauthorized absence from duty during the period from 21 May 2007 to 03 September, 2007. The unauthorized leave was spent by Shri Mour at London even though no ex-India leave was sanctioned by the Ministry of External Affairs.
By the above act the said Shri Wazir Singh Mour, Assistant Library and Information Officer, had shown lack of devotion to duty and exhibited conduct unbecoming of a Government servant thereby violating the provisions of Rules 3(1)(ii) and 3(1)(iii) of CCS (Conduct) Rules, 1964.
8. It is correct that initially applicant had denied the above articles of charges that is why enquiry was ordered. However, during the enquiry, applicant accepted the charges unconditionally by giving the following letter:-
To The Enquiry Authority, Shri Inder Singh.
Dear Sir, I accept the charge as given in charge-sheet dated 5.1.2009 unconditionally and in absolute terms.
I regret the inconvenience caused to the Department by my absence from duty.
I shall not repeat the same in future.
It is kindly requested to take a sympathetic view in my case.
Thanking you, Dt:10.7.2009 Yours faithfully, ] (Wazir Singh Mour. The same day IO had issued the daily order sheet which reads as under:- Daily Order Sheet Sub: Departmental Inquiry against Shri Wazir Singh Mour,
Assistant Library and Information Officer, MEA Holding of Regular Hearing (RH) The RH was held today as per schedule. The following were present:
Shri Ravi Chander, Section Officer PO Shri Wazir Singh, ALIO CO Fifteen prosecution documents were taken on record and marked as exhibit S1 to S15. The CO had not asked for any defence documents. There was no listed prosecution witness nor produced any during enquiry. Therefore, the prosecution case was closed with the consent of the PO.
Before taking up the defence case, the CO was asked whether he accepts or denies the charge. He accepted the charge unconditionally and in absolute terms. He has also given one letter dated today in this regard, which is kept on record.
As the CO has accepted the charge unconditionally and in absolute terms, no further inquiry proceedings is warranted. Therefore, the inquiry proceedings closed finally. The Inquiry Report will be submitted to the disciplinary authority in due course of time.
Copy of this Order Sheet handed over to PO and CO.
(Inder Singh) Inquiring Authority.
This order sheet was duly signed by the applicant which shows applicant had indeed accepted the charges unconditionally and in absolute terms, therefore, it was recorded no further enquiry was warranted. This is in consonance with the judgment of Honble Supreme Court in DHARMARATHMAKARA RAIBAHADUR ARCOT RAMASWAMY MUDALIAR EDUCATIONAL INSTITUTION Vs. THE EDUCATIONAL APPELLATE TRIBUNAL AND ANOTHER reported in AISLJ 2000 (3) SC 128. It was held by the Honble Supreme Court as follows:-
Giving of opportunity or an enquiry of course is a check and balance concept that no one's right be taken away without giving him/her opportunity or without enquiry in a given case or where statute require. But this cannot be in a case where allegation and charges are admitted and no possible defence is placed before the authority concerned. What enquiry is to be made when one admits violations? When she admitted she did not join M. Phil course, she did not report back to her duty which is against her condition of leave and contrary to her affidavit which is the charge, what enquiry was to be made? In a case where facts are almost admitted, the case reveals itself and is apparent on the face of record, and in spite of opportunity no worthwhile explanation is forthcoming as in the present case, it would not be a fit case to interfere with termination order.
9. Similarly in Biecco Lawrie Limited and Another Vs. State of West Bengal and Another reported in 2009 (10) SCC 32 at 44 Honble Supreme Court reiterated the same stand and held as follows:-
In the present case, in the letter dated 22.11.1985, the respondent had admitted all the charges and had stated unequivocally that his behavior was due to mental sickness and prayed for sympathy and mercy. This along with the fact that the respondent was earlier charged on similar grounds and dismissed but, on his request, was exonerated and given a chance to amend his conduct also goes a long way to project the fact that observance of the principles of natural justice would be merely a useless formality since he had admitted the charges against him.
Somewhat same position existed in the present case also. The letter dated 10.7.2009 written by the applicant to the I.O. nowhere states that he had accepted the charges under any assurance given nor in the OA he has mentioned the name of the person who had given him any assurance. He has made a bald and vague averment that he had accepted the charges under the assurance given by the Ministry. This is definitely an afterthought. It was on the basis of admission of the charges by the applicant in unconditional and absolute terms that the IO gave his report to the effect that charges stood proved as the Charged Official (hereinafter referred to as CO) has admitted the charges during the regular hearing held on 10.7.2009.
10. It is relevant to note that even now applicant has not disputed the fact that he had accepted the charges before the Inquiry Officer. Once he had accepted the charges, even if the enquiry report was not given to the CO it would not have made any difference because IO had only recorded charges stand proved as CO has admitted the same. This fact was known to the applicant as he had already signed the daily order sheet as referred to above, therefore, no prejudice has been caused to the applicant by non-supply of the I.O.s report. The law is well settled by the Honble Supreme Court now that mere non-furnishing of enquiry report does not vitiate the order of removal from service. Court has to see whether any prejudice has been caused to the delinquent or not.
11. Counsel for the applicant has placed reliance on Managing Director, ECIL, Hyderabad and Others Vs. B. Karunakar and Others reported in 1993 (4) SCC 727 but he failed to appreciate that in this very judgment Honble Supreme Court had introduced the theory of prejudice. It was held Per Venkatachaliah, C.J., and Swant, Mohan and Jeevan Reddy, J.J. as follows:-
The answer to the question what is the effect on the order of punishment when the report of the Inquiry Officer is not furnished to the employee and what relief should be granted to him in such cases has to be relative to the punishment awarded. When the employee is dismissed or removed from service and the inquiry is set aside because the report is not furnished to him, in some cases the non-furnishing of the report may have prejudiced him gravely while in other cases it may have made no difference to the ultimate punishment awarded to him. Hence to direct reinstatement of the employee with back-wages in all cases is to reduce the rules of justice to a mechanical ritual. The theory of reasonable opportunity and the principles of natural justice have been evolved to uphold the rule of law and to assist the individual to vindicate his just rights. They are not incantations to be invoked nor rites to be performed on all and sundry occasions. Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to a "unnatural expansion of natural justice" which in itself is antithetical to justice.
Hence, in all cases where the Inquiry Officer's report is not furnished to the delinquent employee in the disciplinary proceedings, the courts and Tribunals should cause the copy of the report to be furnished to the aggrieved employee if he has not already secured it before coming to the Court/Tribunal, and give the employee an opportunity to show how his or her case was prejudiced because of the non-supply of the report. If after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. The Court/Tribunal should nut mechanically set aside the order of punishment on the ground that the report was not furnished as is regrettably being done at present. The courts should avoid resorting to short-cuts. Since it is the Courts/ Tribunals which will apply their judicial mind to the question and give their reasons for setting aside or not setting aside the order of punishment, (and not any internal appellate or revisional authority), there would be neither a breach of the principles of natural justice nor a denial of the reasonable opportunity. It is only if the Courts/Tribunal finds that the furnishing of the report would have made a difference to the result in the case that should set aside the order of punishment.
This view has been reiterated in Oriental Insurance Company Limited Vs. S. Balakrishnan reported in JT 2001 (4) SC 417 wherein it was held as under:-
Applying the principles indicated by this Court in ECIL case to the facts of the present case, we cannot conceive any prejudice which is said to have been caused to the delinquent, and therefore, non0supply of the enquiry report could not have been held to have vitiated the entire proceedings.
12. From above it is clear that now order of dismissal or removal cannot be quashed in a stereotype manner on the ground that copy of enquiry report has not been furnished but a duty is caste on the court to see whether any prejudice has been caused to the delinquent or not. Applicant has not been able to show us how he has been prejudiced by non-supply of the enquiry report. On the contrary, we have already returned a finding that prejudice cannot be said to have been caused to the applicant because he had already admitted the charges and enquiry was closed with the said remarks to the knowledge of the applicant, therefore, in the absence of prejudice having been caused to the applicant, the order of penalty cannot be said to be vitiated. This contention is, therefore, rejected.
13. Counsel for the applicant next contended that even if the charges were proved, the punishment was disproportionate to the charges. Once again Honble Supreme Court has repeatedly held that habitual absenteeism amounts to gross indiscipline and once charges are proved in the enquiry then what punishment should be imposed should be left to the authorities to decide. Courts cannot sit in appeal over the findings arrived at by the competent authority but can interfere only if there is any irregularity in the process of taking decision or in conducting the enquiry or if the findings recorded are perverse or based on no evidence. The present case does not fall in any of the above exceptions.
14. In B.C. Chaturvedi Vs. U.O.I. & Ors., reported in AIR 1996 SC 484, it was held as under:-
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 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 therefrom, 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 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 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.
15. In Chairman and Managing Director, United Commercial Bank & Ors. vs. P.C. Kakkar reported in 2003 (4) SCC 364, Honble Supreme Court has held as follows:-
It is settled 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 Wednesbury principle 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 decision-making process and not the decision.
16. In Chairman & Managing Director, V.C.P. and Others Vs. Goparaju Sri Prabhakara Hari Babu reported in 2008 (5) SCC 569 at 570 it was held as under:-
Jurisdiction of the High Court in this regard is rather limited. Its power to interfere with disciplinary matters is circumscribed by well-known factors. It cannot set aside a well-reasoned order only on sympathy or sentiments. The High Court in exercise of its jurisdiction under Article 226 also cannot, on the basis of sympathy or sentiment, overturn a legal order. Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke doctrine of proportionality. If decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when misconduct stands proved.
17. On the question of proportionality of punishment also Honble Supreme Court has held that it is only in those cases where the punishment is so disproportionate that it shocks the conscience of the court that the matter may be remitted back to the authorities for reconsidering the question of quantum of punishment. In Administrator, Union Territory of Dadra and Nagar Haveli Vs. Gulabhia M. Lad reported in 2010 (3) ALSLJ SC 28 it has been held by Honble Supreme Court as under:-
The legal position is fairly well settled that while exercising power of judicial review, the High Court or a Tribunal it cannot interfere with the discretion exercised by the Disciplinary Authority, and/or on appeal the Appellate Authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the Court/Tribunal.
18. In the instant case the applicant not only absented himself unauthorisedly but he proceeded even to foreign country without taking leave or even informing the Ministry of External Affairs. This is definitely a serious matter. This was not done by the applicant once but on three occasions. Twice he went to London without getting the leave sanctioned by the Ministry of External Affairs and third time he went to Hansi near Hissar, Haryana. This clearly shows that applicant was in habit of absenting and proceeding to the places of his choice without informing or taking permission from the competent authority which is a serious matter, therefore, we do not think any case is made out for interference by the Tribunal even on the question of quantum of punishment. The 2nd contention of applicant is also rejected.
19. Counsel for the applicant next contented that having turned down his appeal, the respondents could not have decided the same appeal within 1 month by treating it as review that too in the form of para wise comments because orders are not to be passed in this fashion. It is seen that on 12.5.2010 (page 54) applicant was informed no appeal lies against the order made by the President under Rule 22 (1) of CCS (CCA) Rules, 1965. There is nothing wrong in this order. However, subsequently the said appeal was treated as a review and decided by order dated 15.3.2010. Applicant is correct to the extent that this is in the form of para wise comments and not in the shape of an order. Nonetheless it shows all the contentions of the applicant have been dealt with in detail, therefore, instead of going into the form of the order, it would be more relevant to see the contents of the order since all his contentions have been dealt with in extenso, we do not find any good ground to quash the order on this ground alone.
20. In view of above discussion, we find no merit in the OA. The same is accordingly dismissed. No order as to costs.
(Dr. A.K. Mishra) (Mrs. Meera Chhibber) Member (A) Member (J) Rakesh