Central Administrative Tribunal - Allahabad
Rajesh Singh vs M/O Defence on 1 September, 2021
CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors
CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors
Reserved on: 23.06.2021
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH, ALLAHABAD
Allahabad this the 1st day of September 2021
Hon'ble Mrs. Justice Vijay Lakshmi, Member-J
Hon'ble Mr. Devendra Chaudhry, Member-A
Original Application No. 330/362/2014
(U/S 19, Administrative Tribunal Act, 1985)
Rajesh Singh, T.No. 150, Personal No. 8017/Gate &
Yard/aged about 39 years, Son of Shri Raj Veer Singh
Bhadauria, Resident of Quarter No.G-II-/281/282,
Armapur Estate Kanpur.
Applicant
By Advocate: Shri S.K. Pandey.
Vs.
1. Union of India through the Secretary, Ministry of
Defence (Production), Govt. of India, New Delhi.
2. The Director General, Ordnance Factories Board,
10-A, Sahid Khushi Ram Bose Road.
3. The General Manager, Ordnance Factory Cawnpore
(OFC), Kalpi Road, Kanpur-9.
4. Additional Director General, Ordnance
Factory/Member Appellate Authority, Ordnance
Factory, Kanpur.
Respondents
By Advocate: Shri V.K. Pandey.
Page 1 of 35
CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors
ORDER
Delivered by Hon'ble Devendra Chaudhry, Member (A) The present O.A. has been filed seeking quashing of the order of removal from service dated 08.03.2014 with all consequential benefits.
2. Per applicant, it is submitted that he was appointed on compassionate grounds as 'labour' in 1991 following the demise of his father. That, in 1994, the applicant was served with a charge sheet under Rule 14 of CCS (CCA)Rules, 1965 (in short 'Rules') on grounds of gross misconduct concerning unauthorised possession of material found kept concealed inside his trousers, in a search by the security personnel on gate duty. Following the issue of charge sheet and the representation thereof by the applicant a Court-of-Enquiry was constituted and the same held him guilty. That, the applicant represented against the unfair and biased Enquiry Report but even then, he was punished with dismissal from service vide order dated 15.06.1996.
Page 2 of 35 CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors 2.1 That, as there was delay in decision of the appeal filed by the applicant against the order, therefore an O.A. was filed No. 819 of 1996 before this Tribunal. However, during the pendency of the O.A., the appeal was dismissed by the respondent appellate authority vide order dated 09.07.1997 but the same was not served on the applicant in time and nor was it brought to the knowledge of the Tribunal by the respondents and so, the O.A. 819/1996itself was disposed by the Tribunal vide its order dated 22.10.2002 directing the respondents to dispose of the appeal expeditiously. A Review No. 35/2003 filed by the respondents against this order was dismissed by the Tribunal. That since the punishment order dated 15/06/1996 was passed by the respondents during the pendency of the O.A. 819/1996 and the applicant had no knowledge of the same, notwithstanding, therefore, the applicant filed an O.A. No. 569 of 2004 against the dismissal order 15.06.1996 as well as rejection of the appeal and the revision filed thereupon. The Tribunal vide its order dated 15.12.2009 quashed the dismissal from service order of 1996 with Page 3 of 35 CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors directions to the disciplinary authority to pass a fresh order taking into account findings/report of the Inquiry Officer in its entirety and in accordance with law. It was also directed that the order of the appellate authority and the revisionary authority would accordingly loose their efficacy. That, in compliance of the aforesaid order the applicant was reinstated vide order dated 11.02.2010 but was placed under suspension with effect from (w.e.f) date of dismissal from service, viz 15.06.1996 and also awarded the punishment of dismissal from service once again.
2.2 That the applicant filed a contempt against the complete non-compliance of the Tribunal's order and so, vide directions of the Tribunal dated 20.03.2012 in CP No.20/2011, the respondents passed order dated 27.03.2012 reinstating the applicant again in the service but placing him under suspension w.e.f 15/06/1996 (date of dismissal from service originally) and also directed that as per directions of the Tribunal dated 15.12.2009 in O.A. 569/2004, the findings of the Inquiry Page 4 of 35 CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors Officer will be considered separately. That the applicant filed an appeal against the order of 27.03.2012 and there being delay in decision on the same, filed an O.A. No 1635/2013 in which the Tribunal vide order dated 08.01.2014, directed filing of counter reply by the respondents.
2.3 That the respondents have now ordered the punishment of 'removal from service' vide the impugned order dated 08.03.2014 which is again unjust and unfair. Hence the O.A. to quash the impugned order.
3. Per Contra, the respondent have submitted that the impugned order has taken into consideration all the legal requirements as well as procedure requirements based on the CCS (CCA)Rules, 1965 and the O.A. deserves to be dismissed on the grounds of (i) that as there is a provision of appeal against the order of punishment of 'removal from service' made in the impugned order and the same has been preferred by the applicant vide appeal dated 26.03.2014 and as this appeal is pending, Page 5 of 35 CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors therefore, the applicant has not exhausted this alternative and is seeking the same remedy at two different for a, as a consequence of which the O.A. is not maintainable as per provisions contained in section 20(1) of the Administrative Tribunal Act, 1985 (case law in the matter of Rathore vs State of M 1989 4 SCC 582 para 16 referred to), (ii) that the impugned order has addressed all the concerns expressed by the Tribunal in its order dated 15.12.2009 (in short - 2009 Tribunal order), (iii) that the Tribunal's scope for review in the matters of disciplinary proceedings are limited and that it cannot go into merits of the evidence or examine the same in any detail as it would then be transposing itself in the place of the concerned disciplinary authority which would be against the law laid down by the Hon Apex Court in matters relating to judicial review of disciplinary cases. Therefore the O.A. is liable to be dismissed.
4. We have heard the learnt counsel for both the parties at length and perused all the pleadings filed carefully.
Page 6 of 35 CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors
5. The key issue which falls for consideration is, as to
(i) whether the O.A. is maintainable on grounds of availability of alternative remedy and (ii) whether the impugned order stands the scrutiny of being passed as per law in light of the directions of the order of this Tribunal dated 15.12.2009.
6. As regards the first issue of maintainability, the CCS (CCA) Rules, 1965 and as per Rule-23 and Rule-29 there is a provision for appeal and revision. However, the applicant is before the Tribunal without the decision on the appeal which has already been filed vide date 26/03/2014 by the applicant, decision on which is pending. Section-20/21 of the Administrative Tribunals Act, 1985, prescribes that, alternative remedies be exhausted. As the applicant has not exhausted the remedy of appeal hence the O.A. is perhaps not maintainable. It is also a fact that the appeal was filed against the impugned order vide 26/03/2014 but it also a fact that the same has not been disposed of yet. It is Page 7 of 35 CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors also observed that Section-20 does not place an absolute embargo on the Tribunal to entertain an application if alternative remedy is available (State of Maharashtra vs Dr Subhash Dhondiram Mane 2014 SCC Online Bom 1789: (2015) 4 Mah LJ 791) and hence accepting the O.A. we proceed to decide it on merits.
7. As regards the second issue, in order to decide the same, in light of the submissions by the applicant and the counter as well as other pleadings filed by the respondents including the rejoinder by the applicant, we would do well to examine the order of 15.12.2009 of this Tribunal and then see as to how much the impugned order addresses the directions given by the Tribunal therein. Relevant portions of the same are accordingly extracted below:
"12. None of the authorities' have even touched upon the allegation of several statements having been written in the same handwriting.
13. Having given a considered thought to the facts of the case before us, we are of the view that the Penalty Order has been passed without taking into account the findings of the Inquiry report in its entirety and to that extent it is based on misapprehension without referring to relevant aspects and Page 8 of 35 CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors therefore, it appears to be 'selective' and hence, deserves to be set aside.
14. The penalty order dated 15.06.1996 (Annexure No.1/Compilation No. I of the OA) is accordingly set aside and quashed with directions to the Disciplinary Authority to pass a fresh order if possible within three months of receipt of this order after taking into account findings/report of the Inquiry Officer in its entirety and in accordance with law. Since the penalty order stands quashed and set aside. The Appellate and the order of Reversionary Authority also loose their efficacy."
8. Now it would be pertinent to examine the impugned order and as to how much and how it fulfils the directions contained in the 2009 Tribunal order. Relevant portions of the impugned order number para-2 are accordingly reproduced below:
"2. As directed by the Hon'ble CAT Allahabad vide order dated 15.12.09 passed in OA No.569/04 the findings/report of Inquiry Officer will be considered separately in its entirety in accordance with law.
As such after considering the findings/report of the inquiry officer in its entirety the under signed i.e. Disciplinary Authority/report of Inquiry Officer were forwarded to Shri Rajesh Singh for making representation vide letter dated 12.10.2012. Shri Rajesh Singh forwarded representation date 03.12.2012 with the request to exonerate him from all the charges levelled against him stating that:
He was forced to sign on blank paper to implicate him in a false case of theft. He is also stating that all the Durwans are retired Military personnel and they were well known of Hindi and English language but their statements were managed to be noted down by a single person in single hand writing which was merely signed by them hence their statements dated 13.07.1994 cannot be relied upon. It has also been stated in the representation dated 03.12.2012 that the Inquiry Officer Page 9 of 35 CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors has relied upon all the list of documents mentioned in Annexure-3 of the charge sheet dated 29.11.1994 but author of the document i.e. S.O./O.F.C/26 dated 13.07.1994 never appeared in the court of inquiry and signatory of confiscation report also never appeared before the Inquiry Officer to confirm their signature on confiscation report. It has also been alleged by AGS that Inquiry Officer was biased against him hence did not recorded his reply properly and from a perusal of inquiry proceeding dated 25.08.1995 would reveal that Shri K.K. Pandey clearly admitted during the course of examination that he was not present in the rigorous search room on 13.07.1994 at the time of recovery of the material from the applicant but was present at labour gate whereas another prosecution witness has deposed in his statement that Mr. K.K. Pandey was present in the rigorous search room when the material was recovered from the AGS. Shri Rajesh Singh is also alleging that he has not received reply of his representation dated 25.10.2012 under RTI Act for submitting effective reply but in pursuance of this factory letter dated 10.11.2012 he is bound to submit his reply within the stipulated time irrespective of its being effective or ineffective. Shri Rajesh Singh has also stated that as observed in Para 3 of GM findings dated 12.10.2012 some points were not considered properly by the Inquiry Officer and there is no sufficient evidence on record to disagree, hence do-novo inquiry is the only option if so permitted by the Hon'ble CAT, Allahabad but no time extension is granted till date as such he is liable to be exonerated from all the charges.
It is found that Shri Rajesh Singh was never forced to sign on confessional statement and he was not implicated in the said incident because during the course of inquiry when Inquiry Officer asked AGS as to why he did not inform Orderly Officer or any other officer in this regard, he stated that "DhyanNahi Raha". Had the AGS signed his statement under any pressure he would have intimated to the Orderly Officer a senior Group 'A' Gazetted Officer in whose presence the written statement was recorded. Neither all the Durwans were retired Military personnel not they were well known of Hindi and English language as alleged by the AGS. The statements were recorded in single handwriting because most of the Durwans and Industrial Employees are not well educated and are not able to record their statements in writing. As such their statements were recorded with the help of third person with their consent after reading out the contents of the statements in presence of Orderly Officer, a senior Group 'A' Gazetted Officer. As such there was nothing fabricated or false intention to implicate Shri Page 10 of 35 CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors Rajesh Singh. All the witnesses as mentioned in Annexure-4 of the chargesheet dated 29.11.1994 were produced before the court of inquiry and author of said document i.e. S.O./O.F.C./26 dated 13.07.1994 or signatory of confiscation report were not mentioned as prosecution witnesses in charge sheet dated 29.11.1994 hence there was no need to summon them during the course of inquiry. Further, more during the course of inquiry neither the AGS nor his defence assistant requested Inquiry Officer to summon them hence the question of summoning these authorities during the inquiry does not arise. During the course of inquiry the AGS never intimated the Disciplinary Authority that the Inquiry Officer was biased against him and now he is making baseless allegations which is not tenable. So far as averment of Shri R.D. Pathak, PW-3 regarding presence of Shri K.K. Pandey in the rigorous search room are concerned it is submitted that the incident took place on 13.07.94 and the examination/cross examination of Shri R.D. Pathak was held on 25.08.95 i.e. after a lapse of more than a year. It is quite possible that he would have forgotten the exact number & identities of persons present in the search room during the rigorous search of Shri Rajesh Singh because Shri R.D. Pathak did not mention the name of persons present in search room in his written statement dated 13.07.94. No such representation dated 25.10.2012 along with required postal order under RTI Act was received in the concerned section of the Factory. In fact Shri Rajesh Singh forwarded representation dated 25.10.2012 with the request to provide him further 15 days for furnishing reply and a copy of alleged letter dated 25.10.2012 to have been submitted on the same date i.e. 25.10.2012 under RTI Act was enclosed with this representation. As such the question of furnishing the information to the AGS does not arise. The contempt application No.20/2011 Rajesh Singh vs Shri D.M. Gupta and Shri A.K. Rai has already been disposed by the Hon'ble CAT, Allahabad vide order dated 27.03.2012 and in pursuance of Hon'ble CAT, Allahabad observations as made on 20.03.2012 in this Contempt Application Shri Rajesh Singh was reinstated in service vide order dated 24.03.2012 with the further direction that the finding/report of Inquiry officer will be considered separately in its entirety in accordance with law. There is no such directions of the Hon'ble CAT, Allahabad to initiate de- novo inquiry or exonerate the AGS from the charges levelled against him. There is no such provision that in each and every case when the Disciplinary Authority is not agree with the findings of Inquiry Officer must remit the matter back to the Inquiry Officer. In pursuance of Rule 15 (2) of CCS (CC&A) Page 11 of 35 CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors Rules 1965 the Disciplinary Authority may also record its own tentative reasons for disagreement and the copy of inquiry report submitted by the Inquiry Officer along with findings of the Disciplinary Authority are forwarded to the AGS for making representation. Shri Rajesh Singh joined duty w.e.f. 26.03.2012 F/N. Accounts office, Ordnance Factory Kanpur passed Rupees 1,22,953/- as subsistence allowance from 15.06.1996 to 25.03.2012 in r/o Shri Rajesh Singh and deducted rupees 76,627/- of HRA, Elect. Charge and Water Charge etc. from rupees 1,22,953/-. After deducting the abovesaid charges rupees 43,476/- have been paid to Shri Rajesh Singh."
9. Now in the context of the above impugned order and the Tribunal order of 2009, we may examine the points raised by the applicant assailing the impugned order on grounds of non- compliance of the Tribunal 2009 order. On dong so we find that the applicant has inter alia assailed the afore stated impugned order on grounds of being malafide, biased and illegal inasmuch that (i) adequate opportunity of hearing to the applicant including adducing of evidence has been denied, (ii) there is illegal reliance on the witness and evidence of the already biased security guards (Darwans), (iii) that the evidence is not reliable inasmuch that the same has been recorded by the same one person for all the witnesses and his signatures have been taken on the evidence forcibly, (iv) that the order has been passed on the same Page 12 of 35 CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors charge sheet which was issued in 1994 and that too after a long lapse of time of the issue of charge sheet which itself was issued in 1994 on the basis of which the impugned order has been issued, and so it is on the same grounds as the earlier orders of dismissal from service against the applicant passed on earlier occasions and assailed before the Tribunal moreso, when the earlier orders were struck down finally by the Tribunal 2009 order, (v) reliance on the same charge sheet again and again for passing punishment orders is not permissible as per procedure established by law particularly (vi) the respondents did not seek any time extension before passing the impugned order, (vii) that the applicant has also expressed his apprehension of bias against the respondents and the same is submitted in the O.A. No 569/2004 which is why the Tribunal had vide 2009 order quashed the punishment order of dismissal from service dated 15.06.1996, (viii) that the applicant's suspension was never reviewed and came to end after expiry of 90 days from the date of suspension and only subsistence allowance has been paid, and finally, (ix) that the Page 13 of 35 CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors respondents have awarded extreme penalty of removal from service for a petty alleged theft. That therefore, the impugned order deserves to be set aside.
10. In the context of the points aforesaid, we find that the impugned order has substantively addressed the points raised. Thus, on the issue of opportunity of hearing it is clearly stated under the para numbered as '2' in the impugned order (relevant extracts reproduced above), that the applicant was given adequate opportunity inasmuch that (a) he was given all the reports and findings connected with the punishment dated 15.06.1996 for making representation vide letter dated 12.10.2012 of the respondents and (b) the applicant submitted his representation thereupon vide his representation dated 03.12.2012. Then, as regards illegal reliance on the witness and evidence of the already biased Durwans and hence biased evidence, there is no substantive proof except a frivolous allegation by the applicant against the security personnel who had checked the illegal material carried on the persona of the Page 14 of 35 CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors applicant on the fated day which is not good enough to substantiate any bias claim. It is no longer res integra that Mala fide has to be proved adequately in a court of law moreso, by arraying the concerned person against whom malafide is alleged not the whole department. Following case laws refer on the matter:
10.1 In Tara Chand Khatri v. Municipal Corporation of Delhi and Ors., , wherein the Hon'ble Supreme Court has held that the High Court would be justified in refusing to carry on investigation into the allegation of mala fides, if necessary particulars of the charge making out a prima facie case are not given in the writ petition and burden of establishing mala fide lies very heavily on the person who alleges it and there must be sufficient material to establish malus animus. Similarly, in E.P. Royappa v. State of Tamil Nadu and Anr., , the Hon'ble Supreme Court held-
"..we must not also over-look that the burden of establishing mala fides is very heavy on the person who alleges it.... The Court would, therefore, be slow to draw dubious inferences from incomplete facts placed before it by a party, particularly when the imputations are grave and they are made against the holder of an office which has a high responsibility in the administration. Such is the judicial perspective in evaluating charges of unworthy conduct against ministers and other, not because of any special status... but because otherwise, functioning effectively would become difficult in a democracy."Page 15 of 35
CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors 10.2 The Hon'ble Supreme Court in Sukhwinder Pal Bipan Kumar and Ors. etc. etc. v. State of Punjab and Ors.; and ShivajiraoNilangekar Patil v. Dr. Mahesh Madhav Gosavi and Ors., has made similar observations. In M. Sankaranarayanan, IAS v. State of Karnataka and Ors., the Hon'ble Supreme Court observed that - the Court may "draw a reasonable inference of mala fide from the facts pleaded and established. But such inference must be based on factual matrix and such factual matrix cannot remain in the realm of institution, surmise or conjecture." 10.3 There has to be very strong and convincing evidence to establish the allegations of mala fides specifically alleged in the petition as the same cannot merely be presumed. The presumption is in favour of the bona fides of the order unless contradicted by acceptable material. (Vide Kiran Gupta and Ors. v. State of U.P. and Ors., ; and Netai Bag and Ors. v. State of W.B. and Ors., ). Page 16 of 35 CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors 10.4 In State of Punjab v. V.K. Khanna and Ors., AIR 2001 SC 343, the Hon'ble Apex Court examined the issue of bias and mala fide, observing as under:
"Whereas fairness is synonymous with reasonableness- bias stands included within the attributes and broader purview of the word 'malice' which in common acceptation means and implies 'spite' or 'ill will'. One redeeming feature in the matter of attributing bias or malice and is now well settled that mere general statements will not be sufficient for the purposes of indication of ill will. There must be cogent evidence available on record to come to the conclusion as to whether in fact, there was existing a bias or a mala fide move which results in the miscarriage of justice.... In almost all legal inquiries, 'intention as distinguished from motive is the all-important factor' and in common parlance a malicious act stands equated with an intentional act without just cause or excuse."
10.5 In First Land Acquisition Collector and Ors. v. Nirodhi Prakash Gangoli and Anr. and Jasvinder Singh and Ors. v. State of J & K and Ors., the Apex Court held that burden of proving mala fides is very heavy on the person who alleges it. Mere allegation is not enough. Party making such allegations is under a legal obligation to place the specific materials before the Court to substantiate the said allegations. Similarly, it is laid down that it is settled legal proposition that in case allegations of mala fide are made against any person he is to be impleaded by name, otherwise the allegations cannot be considered. (State of Bihar and Anr. v. P.P. Page 17 of 35 CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors Sharma, IAS. and Anr., AIR 1992 SC 1260; Dr. J.N. Banavalikar v. Municipal Corporation of Delhi and Anr., AIR 1996 SC 326; All India State Bank Officers Federation and Ors v. Union of India and Ors., ;& I.K. Mishra v. Union of India and Ors., ).
10.6 We find no such array or action taken by the application in the instant matter and no substantive ground for proving the allegation of bias/malafide. The plea that the Durwans were biased because he was a compassionate appointee is the height of wild imagination on part of the applicant in context of the theft committed by him.
10.7 As regards the recording of witness statements in a single person handwriting, as per normal court procedure, statements of witnesses are indeed recorded by typically one person and the witness signs the statement after the same is read to him or her. This does not mean that the witness statement is not admissible. Page 18 of 35 CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors Further the impugned order states quite upfront and understandably that:
"...The statements were recorded in single handwriting because most of the Durwans and Industrial Employees are not well educated and are not able to record their statements in writing. As such their statements were recorded with the help of third person with their consent after reading out the contents of the statements in presence of Orderly Officer, a senior Group 'A' Gazetted Officer. As such there was nothing fabricated or false intention to implicate Shri Rajesh Singh..."
10.8 As regards the forcible signing of the confessional statement it is clearly stated in the impugned order that -
"...Shri Rajesh Singh was never forced to sign on confessional statement and he was not implicated in the said incident because during the course of inquiry when Inquiry Officer asked AGS as to why he did not inform Orderly Officer or any other officer in this regard, he stated that "DhyanNahi Raha".
Had the AGS signed his statement under any pressure he would have intimated to the Orderly Officer a senior Group 'A' Gazetted Officer in whose presence the written statement was recorded..."
10.9 The Tribunal order of 2009 pointed out that the punishment order of 15.06.1996 assailed before it did not take into account inconsistencies in the witnesses and evidence thereof. As regards the inconsistencies in the witness statements and or production of relevant witnesses, the impugned order now, notably clearly Page 19 of 35 CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors states that all the witnesses as mentioned in Annexure-4 of the charge sheet dated 29.11.1994 were produced before the court of inquiry. That the signatory of confiscation report was not mentioned as prosecution witnesses in charge sheet dated 29.11.1994, hence there was no need to summon them during the course of inquiry. Furthermore, during the course of inquiry neither the applicant nor his defence assistant requested Inquiry Officer to summon them, hence also the question of summoning these authorities during the inquiry did not arise. As regards the witness of Shri R.D. Pathak, PW-3 regarding presence of Shri K.K. Pandey in the rigorous search room are concerned, the same has been explained by submitting that the incident took place on 13.07.94 and the examination/cross examination of Shri R.D. Pathak was held on 25.08.95 i.e. after a lapse of more than a year and that it is quite possible that he would have forgotten the exact number & identities of persons present in the search room during the rigorous search of Shri Rajesh Singh because Shri R.D. Pathak did not mention the name of persons present in search Page 20 of 35 CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors room in his written statement dated 13.07.94.Here it also needs to be understood that the quality of evidence led in a disciplinary proceeding is quite different as compared to a proceeding in a criminal matter in a criminal case. Both are not on identical platform. It is preponderance of the misconduct which is adjudged and not exact evidence as is led in a criminal court. The witness statement does not become fully inconsistent just because one of the person's present in a place is omitted. The Hon Apex Court has ruled on the aspect of quality of evidence in a disciplinary proceeding versus criminal proceedings on several occasions. Thus, in the matter of Ajit Kumar Nag vs. General Manager (PJ), Indian Oil Corpn. Limited, Haldia &Ors., it has been held that-
".... In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused 'beyond reasonable doubt', he cannot be convicted by a court of law. In departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of 'preponderance of probability'. Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since Page 21 of 35 CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside."
Similarly in the case of Depot Manager, A.P. State Road Transport Corpn. Vs. Mohd. Yousuf Miya &Ors., Hon Apex Court held that -
"....When trial for criminal offence is conducted it should be in accordance with proof of the offence as per the evidence defined under the provisions of the Evidence Act. Converse is the case of departmental enquiry. The enquiry in a departmental proceedings relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. Under these circumstances, what is required to be seen is whether the departmental enquiry would seriously prejudice the delinquent in his defence at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances. In this case, the charge is failure to anticipate the accident and prevention thereof. It has nothing to do with the culpability of the offence under Sections 304-A and 338 IPC. Under these circumstances, the High Court was not right in staying the proceedings."
Thus, we cannot accept the plea that adequate evidence does not exist to impose punishment as done in the impugned order and it cannot be struck down on some unsubstantiated inconsistency or exactness as may be required in a criminal proceeding in contrast to a disciplinary proceeding as per CCS (CCA) Rules, 1965. Page 22 of 35 CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors
11. As regards the ground that the order has been passed on the same charge sheet which was issued in 1994 and the impugned order has been issued after a long lapse of time of the issue of charge sheet which is not permissible as per procedure established by law, particularly, when the respondents did not seek any time extension before passing the impugned order, it is clear that the 2009 order of this Tribunal only directed the Disciplinary Authority to pass a fresh order after taking into account findings/report of the Inquiry Officer in its entirety and in accordance with law. It nowhere states that a fresh inquiry is to be held. It only requires the respondent to take into account all the findings of the Inquiry Report and pass an order after taking into account all of the same and pass order as per law. The impugned order has, as discussed above examined all the findings in the Inquiry Report and there is no need of a fresh inquiry or seeking time extension etc stated in the 2009 Tribunal order. As regards the point that the punishment is now awarded on the same charge sheet is Page 23 of 35 CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors also frivolous as none was required to be issued afresh in the first place as there was no such direction of this Tribunal in the 2009 order. In the event these grounds taken by the applicant fail to justify the plea being made for setting aside the impugned order.
12. As regards the plea of the inquiry being biased, the same has been sufficiently explained in the impugned order inasmuch that during the course of inquiry the applicant never intimated the Disciplinary Authority that the Inquiry Officer was biased against him. For the applicant to now make the allegation is something which cannot be accepted as per established procedure for conduct of a disciplinary proceeding in the Rules thereto and hence this ground is without any foundation. In any case there is not a piece of paper which would give any indication that the inquiry was biased. This is all a vain attempt to discredit the inquiry process and the applicant is eminently failing in the same.
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13. As regards the plea of award of extreme punishment viz removal from service, firstly it is noted that the earlier punishment of 'dismissal from service' has been now reduced to 'removal from service'. Secondly it is noted that the applicant got his appointment just a few years ago viz in 1991 and that he was caught in an earlier similar incident in 1992 that is just within one year after appointment and was awarded a punishment vide the subsequent order in 1993 of stoppage of increment when next due for a period of three years with cumulative effect. The extracts below from the counter affidavit filed by the respondents would make this amply clear:
". . . . .applicant was not satisfactory during last six month. Thereafter, the Disciplinary Authority after considering all the facts and evidences available on record found that the applicant guilty of the charges levelled against him vide memorandum dated 29/11/1994 and taking a lenient view imposed the penalty of "Removal From Service" vide order dated 08/03/2014. It is also worth mentioning that this was not first chance when the applicant was caught red handed while attempting to commit theft. Prior to this incident on 26/11/1992 at about 11.15 Hrs. at Main Gate of Factory the applicant was found in unauthorized possession of Government Material i.e. 2 pieces of copper rod weighing 1 Kg. kept concealed in trouser's packet (i.e. one in each pocket) when searched by the security staff on the Gate Duty. The applicant was placed under suspension vide order dated 28/11/1992. The applicant was issued memorandum of charge sheet dated 02/01/1993. In reply to chargesheet dated 02/01/1993 the applicant submitted representation dated 12/01/1993 wherein he accepted the charges levelled against him. The suspension of the applicant was revoked vide order dated 08/02/1993 Page 25 of 35 CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors and the Disciplinary Authority imposed the penalty of "stoppage of increment when next date due for a period of three years with cumulative effect" on the applicant vide order dated 12/02/1993. As such it is clear that the applicant is habitual offender...."
That he has been again caught in a similar wrong doing in 1994 just one year after the award of the punishment of the earlier matter is certainly a matter of grave concern in terms of making the applicant a habitual offender and that too in a Defence establishment, something which any Defence organisation of the country can ill afford. Thus, the plea of proportionality of punishment is not justifiable. It is trite that the doctrine of proportionality is pressed into service not as a charity of emotion but on grounds of proportionate justice. Thus, the Hon Apex Court has held in the matter of Union of India vs G Ganyutham the Hon Apex Court vide 27 August, 1997considered some important English decisions, namely, Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation, Council of Civil Service Unions v. Minister for Civil Service4, R.v. Goldstein and R. v. Secretary for Home Dept. ex. p. Brind and few decisions of this Court, viz., Ranjit Thakur v. Union of India, State Page 26 of 35 CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors of Maharashtra v. M.H. Mazumdar8, Ex-Naik Sardar Singh v. Union of India9, Tata Cellular v. Union of (1997) 7SCC463 (1947) 2All ER 680 (1984) 3 All ER 935 (1983) 1 All ER 434 (1991) 1 All ER 720 (1987) 4 SCC 611 (1988) 2 SCC 52 (1991) 3 SCC 213 India10, State of A.P. v. McDowell & Co.11 and summed up position of proportionality in administrative law in England and India thus :
"(1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision-
maker could, on the material before him and within the framework of the law, have arrived at. The court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bona fide. The court would also consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the court substitute its decision to that of the administrator. This is the Wednesbury test.
(2) The court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational -- in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU principles.
(3)(a) As per Bugdaycay (1987 AC 514), Brind and Smith as long as the Convention is not incorporated into English law, the Page 27 of 35 CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors English courts merely exercise a secondary judgment to find out if the decision-maker could have, on the material before him, arrived at the primary judgment in the manner he has done. (3)(b) If the Convention is incorporated in England making available the principle of proportionality, then the English courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair (1994) 6 SCC 651 (1996) 3 SCC 709 balancing of the fundamental freedom and the need for the restriction thereupon. (4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the courts/tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.
(4)(b) Whether in the case of administrative or executive action affecting fundamental freedoms, the courts in our country will apply the principle of "proportionality" and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It will be then necessary to decide whether the courts will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article 14."
24. Dealing with the question of proportionality with regard to punishment in disciplinary matters, the court said :
"32. Finally, we come to the present case. It is not contended before us that any fundamental freedom is affected. We need not therefore go into the question of "proportionality". There is no contention that the punishment imposed is illegal or vitiated by procedural impropriety. As to "irrationality", there is no finding by the Tribunal that the decision is one which no sensible person who weighed the pros and cons could have arrived at nor is there a finding, based on material, that the punishment is in "outrageous" defiance of logic. Neither Wednesbury nor CCSU tests are satisfied.
The point is the proportionality test is not blind as to the actual facts in the case and has to be tested on the same.Page 28 of 35
CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors in the present matter we find that the applicant was punished for a similar matter in 1992 just one year after his appointment on compassionate grounds and then the present maleficence has been done again in 1994. So, we are unable to confer the benefit of gross shocking of conscience test in the case of the applicant qua the removal from service punishment per the impugned order.
14. The other points raised by the applicant that the applicant's suspension was never reviewed and came to end after expiry of 90 days from the date of suspension and only subsistence allowance has been paid is a matter of suspension allowance and not grounds for striking down the impugned order on grounds of merit.
15. It is to be further noted that the scope of judicial review in disciplinary matters is quite limited. The ld respondent counsel has quoted the matter of Apparel Export Promotion Counsel Vs. A.K. Chopra JT 1999 (1) SC 61 held that -Page 29 of 35
CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors "It is well settled that the court in exercise of power of judicial review is not concerned with the correctness of finding ofin which it was held that fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at by the administrative/Disciplinary Authority, after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the against him, the court cannot substitute its judgment for that of the administrative authority an a matter which fell within the sphere of jurisdiction of that authority."
Another citation quoted concerns Civil Appeal No. 2864 of 1996, State of Tamilnadu and others vs. S. Subramanium decided on 24/01/1996 wherein the Hon Apex Court held that -
"the Tribunal is not a Court of Appeal. The power of judicial review of the High Court under Article 226 of the constitution of India was taken away by the power under Article 323-A and invested in the Tribunal by the Administrative Tribunal Act 1985. It is settled law that the Tribunal has only power of judicial review of the administrative action of the appellant on complaints relating to service condition of employees. It is the exclusive domain of the disciplinary authority to consider the evidence on record and to record findings whether the charge has been proved or not. It is equally settled law that technical rules of evidence have no application to the disciplinary proceedings and the authority is to consider the material on record. In Judicial review, it is settled law that the court or the Tribunal has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial Review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to Page 30 of 35 CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors ensure that the conclusion which the authority reaches is necessarily correct in view of the court of Tribunal. When the conclusion reached by the authority is based on evidence the Tribunal is devoid of power to re-appreciate the evidence".. and come to its own conclusion on the proof of the charge. The only consideration the Court/Tribunal in its judicial review is whether the conclusion is based on evidence on record and supports the findings or whether the conclusion is based on no evidence."
Similar other citations also buttress the point of law discussed above. It is trite law that the judicial review is not an appeal or a decision but a review of the manner in which the decision has been made. The purpose of judicial review is to ensure that the individual receives fair treatment. Thus, in the matter of Govt. of A.P. Vs. P. Chandra Mouli reported in 2009 (13) SCC 272, it has been held by Hon'ble Supreme Court that -
"....the power of punishment to an employee is within the discretion of the employer and ordinarily the courts to not interfere unless it is found that either inquiry proceedings or punishment is vitiated because of non-observance of the relevant rules and regulations or principles of natural justice or denial of reasonable opportunity to defend, etc. or that the punishment is totally disproportionate to the proved misconduct of an employee."
In Lalit Popli v Canara Bank, AIR 2003 SC 1795 Hon Apex Court held that -
Page 31 of 35 CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors "....whileexercising jurisdiction under article 226 of the Constitution the High Court does not act as an appellate authority. Its jurisdiction is circumscribed by limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. Judicial review is not akin to adjudication of the case on merits as an Appellate Authority...."
In fact the Hon Apex Court eloquently laid down in the matter of Indian Railway Construction Co. Ltd. v Ajay Kumar, AIR 2003 SC 1843 that -
"...One can conveniently classify under three heads the grounds on which administrative action is subject to control by judicial review. The first ground is 'illegality' the second 'irrationality', and the third 'procedural impropriety'.
The Court will be slow to interfere in such matters relating to administrative functions unless decision is tainted by any vulnerability enumerated above; like illegality, irrationality and procedural impropriety. Whether action falls within any of the categories has to be established. Mere assertion in that regard would not be sufficient...."
16. In any case the Tribunal has, in its order of 2009 substantially discussed upon all the facets of possible infirmity in the order of 15.06.1996 and the same have been taken care of in the latest impugned order of 08.03.2014 as has been discussed above.
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17. The citations quoted by the ld applicant counsel viz KV Gnanasampandan vs Union of India and Ors (CAT Chennai dated 03.03.2000) as well as Panchu Gopal Banerjee vs UoI&Ors dated 20/11/1990 concern directions relating to non-completion of inquiry in time and unexplained administrative delays. The citation of CAT Allahabad judgement dated 10/07/2015 in Gopal Ram vs UoI and Ors., concerns competent authority which is not under challenge here. The reference to delay in inquiry also in Gopal Ram (supra) is also not applicable. Thus, the citations do not squarely cover the issues under consideration inasmuch that there is no case of a fresh inquiry following the 2009 Tribunal order as already discussed in detail and hence the issue of delay etc in the matter of conduct of inquiry is ab initio not of justifiable consideration. It would no longer held valid in law if this Tribunal again goes into appreciating evidence which is not first of all permissible due to limited scope of judicial review and secondly the same has been done by the Tribunal in its 2009 order and now addressed in the impugned order 08.03.2014. Therefore, Page 33 of 35 CAT ALLAHABAD BENCH OA No. 330/00362/2014 Rajesh Singh Vs UoI&Ors we are unable to unearth any new material against any illegality or irregularity in the procedure as per law adopted by the respondents while passing the impugned order. There is just no jarring note left for us to be alerted upon and justify the plea of the applicant. In fact he is playing the same old octave of bias, malafide, illegality and irregularity of procedure. In fact, the applicant had been earlier also punished in 1992 on similar gross misconduct charges of possessing unauthorised material on his body clothes. We daresay he seems to be a habitual offender. In fact the respondents have despite all this reduced the punishment from dismissal to removal from service. It is to be noted that the applicant is an employee from the Defence establishment dealing with manufacture of armaments. Any laxity in discipline in Armed Forces related establishment even if in Civil side has to be looked at into with abundant caution and attendant action in case of maleficence. We cannot bring petty emotion in dealing with this matter.
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18. Therefore, there remains no doubt as to the correctness of the impugned order in addressing the concerns of this Tribunal in its order of 2009. The order also addresses the issues raised by the applicant in his various representations regarding the enquiry process concerning the documents and the witnesses. Given the facts of the case and the catena of judgements relating to inter alia, limited scope of judicial review in disciplinary matters, appreciation of evidence in disciplinary matters, malafide and bias, proportionality of punishment, we are unable to accept the plea of the applicant and so the O.A. is dismissed as being devoid of any merits.
19. No costs.
(Devendra Chaudhry) (Justice Vijay Lakshmi)
Member-A Member - J
/Shakuntala/
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