Central Administrative Tribunal - Lucknow
Ramanand Sharma Aged About 60 Years Son ... vs Union Of India Through The General ... on 15 February, 2016
CENTRAL ADMINISTRATIVE TRIBUNAL,
LUCKNOW BENCH LUCKNOW
Original Application No. 90/2010
Order Reserved on 27.1.2016
Pronounced on 15.2.2016
HONBLE MR. NAVNEET KUMAR, MEMBER(J)
HONBLE MS. JAYATI CHANDRA, MEMBER (A)
Ramanand Sharma aged about 60 years son of Sri Ambika Prasad resident of Semra Damman, Near Kori Purwa, P.O. Baragaon, Gonda.
Applicant
By Advocate: Sri Surendran P
Versus
1. Union of India through the General Manager, N.E. Railway, Gorakhpur.
2. Divisional Railway Manager, N.E. Railway, Lucknow.
3. Senior Divisional Mechanical Engineer (Carriage and Wagon) N.E. Railway, Ashok Marg, Lucknow.
4. Divisional Mechanical Engineer (C&W), NE Railway, Lucknow.
5. Coaching Depot Officer (Carriage and Wagon) Charbagh, N.E. Railway, Lucknow.
6. Senior Section Engineer (Coaching) Carriage and Wagaon, N.E. Railway, Gonda.
7. Senior Section Engineer (Carriage and Wagon) N.E.Railway, Mailani.
Respondents
By Advocate: Sri B.B.Tripathi
ORDER
HONBLE MR. NAVNEET KUMAR, MEMBER(J) The present O.A. is filed by the applicant under section 19 of the AT Act with the following reliefs:-
i) quash the orders dated 27.3.2008, 22.6.2009 and 7.10.2009 and also the show cause notice dated 7.5.2009 contained in Annexure No. 1 to 3 and 8 to this original application and issue a direction to restore the position of the applicant as Technician Grade I.
ii) issued a direction to fix the pay of the applicant and pay arrears of salary upto the date of his retirement.
iii) issue a direction to revise the retiremental benefits including the pension.
iv) any other order which this Honble Court deems just and proper be also passed.
2. The brief facts of the case are that applicant aggrieved by the punishment of reduction of pay from Rs. 5250/- to Rs. 4875/- for a period of three years and also aggrieved by the appellate order who has enhanced the punishment awarded to the applicant and reverted him from the post of Technical Grade I to Technical Grade II and fix the pay in new scale. The applicant also filed revision against the said order which is also rejected and punishment awarded by the Appellate authority is upheld by means of order dated 7.10.2009.
3. The applicant claims that he took casual leave for two days i.e. for 4.8.2006 and 5.8.2006 on account of illness of his wife. Thereafter, the same was extended from time to time and the applicant also submitted the medical certificate. During the leave period, the applicant was transferred from Gonda to Mailani and on account of illness of his wife, he could not join at Mailani as a result, a charge sheet is served upon the applicant in 2008 and the applicant remained absent for a longer period without any prior sanction of leave. The applicant denied the charges and the enquiry officer conducted the enquiry.
4. The report of the enquiry officer along with show cause notice was served upon the applicant to which the applicant submitted the reply and subsequently the punishment order dated 27.3.2008 was passed. The applicant preferred an appeal but during pendency of appeal, the appellate authority issued another show cause notice for enhancement of punishment awarded to the applicant. The applicant submitted the reply on the said show cause notice on 23.5.2009. The learned counsel for the applicant also vehemently argued and submitted that the appellate authority without considering the reply submitted by the applicant and points raised in the appeal decided the same by means of order dated 22.6.2009, against which the applicant preferred the revision which is also rejected by the revisional authority on 27.8.2009.
5. Not only this, the applicant also preferred a review and the reviewing authority again rejected the same by means of order dated 7.10.2009. The learned counsel for applicant also vehemently argued and pointed out that during the course of enquiry, the applicant submitted the documents, pertaining to illness of his wife and reasons for not joining the duty on time and it is argued that the entire enquiry is conducted in an arbitrary manner and against the provisions of Railway Servants (Discipline and Appeal ) Rules, 1968 and the enquiry officer also did not consider the defence brief submitted by the applicant.
6. Apart from this, learned counsel for applicant also raised a plea that the provisions of Rule 22(2)(v) of the Railway Servants (Discipline and Appeal ) Rules, 1968 is also violated and enquiry officer has functioned as Enquiry Officer as well as Presenting Officer, as such provisions of Rule 9 (iv)(c ) of Rule 9 of Railway Servants (Discipline and Appeal ) Rules, 1968 are violated.
7. The learned counsel for applicant also relied upon two decisions of the Honble Apex Court in the case of B.D.Gupta Vs.State of Haryana reported in 1973 (Supreme Court Cases (Lab.) 49 and Union of India and others Vs. I.S.Singh reported in (1994) 28 Administrative Tribunal Cases 53.
8. On behalf of the respondents, detailed reply is filed and through reply, it is indicated by the respondents that since the applicant was unauthorisedly absent from duty as such, charge sheet is served upon the applicant and enquiry was conducted and after conducting the enquiry, the competent authority has decided to impose punishment upon the applicant. It is also argued by the learned counsel for the applicant that enquiry officer has considered all the material as placed by the applicant and appellate authority as well as revisional authority has also considered all material available on record, as such there is no illegality in conducting the enquiry.
9. Learned counsel for respondents argued indicated that interference is not permissible unless the order is contrary to law or the decision taken by the disciplinary authority is perverse, without jurisdiction and adequacy or reliability of evidence.
10. Apart from this, it is also indicated by the learned counsel for respondents that there is no illegality in conducting the enquiry, as such the present O.A. deserves to be dismissed.
11. On behalf of the applicant, Rejoinder Reply is filed and through Rejoinder, mostly the averments made in the O.A. are reiterated and denied the contents of the counter reply.
12. Learned counsel for applicant has also filed certain documents which are also perused.
13. Heard the learned counsel for parties and perused the records.
14. The applicant who was working with the respondents organization sought two days casual leave on 4.8.2006 and 5.8.2006 on account of illness of his wife which was extended from time to time. During the period of his leave, the applicant was transferred from Gonda to Mailani but on account of illness of his wife, he could not join at Mailani, as such due to his unauthorized absence, the applicant was served with a charge sheet dated 24.1.2007 indicating therein that applicant remained unauthorisedly absent w.e.f. 4.8.2006 till date. Along with the charge sheet, list of witnesses as well as list of documents were also annexed and the applicant is also given a show cause notice. After that, enquiry officer was appointed who conducted the detailed enquiry.
15. The copy of the enquiry officers report along with show cause notice dated 17.8.2007 is also served upon the applicant. The enquiry officer while submitting the report has categorically indicated that the applicant remained unauthorisedly absent w.e.f. 4.8.2006 till the date of enquiry, as such applicant has violated the provisions of Railway Servants (Discipline and Appeal ) Rules, 1968. The copy of the enquiry officer report along with show cause notice was served upon the applicant who submitted his report and the reply of the applicant, enquiry officers report and other documents were placed before the Disciplinary authority and disciplinary authority after considering the charge sheet and other relevant documents, came to the conclusion that the applicant remained unauthorisedly absent from 4.8.2006 till 21.1.2007 and from 21.1.2007 till 9.6.2007 as such a punishment of reduction of pay from Rs. 5250/- to Rs. 4875/- for the period of three years was imposed. The applicant preferred the appeal against the punishment order but prior to disposal of the appeal, the appellate authority issued another notice to the applicant on 9.5.2009 to which the applicant submitted the reply and the appellate authority after considering the reply, show cause notice as well as appeal of the applicant, enhanced the punishment and reverted the applicant from the post of Technical Grade I to Technical Grade II and fix the pay of the applicant in new scale of Rs. 20200 in grade pay of Rs. 2400/-. Aggrieved against the said order, the applicant preferred the revision which is also rejected by the revisional authority vide order dated 7.10.2009. Feeling aggrieved by the action of the respondents, the applicant preferred the present O.A.
16. During the course of arguments, the learned counsel for applicant raised certain grounds including that provision of Rule 9 and Rule 22 of Railway Servants (Discipline and Appeal ) Rules, 1968 are violated and the order so passed by the respondents are non-speaking order and the respondents failed to consider the factual position and ground taken in the appeal and decided the appeal.
17. The bare perusal of Rule 9 of Railway Servants (Discipline and Appeal ) Rules, 1968 provides for procedure for imposing penalties and Rule 9(4)(c ) provides as under:-
(c) Where the disciplinary authority itself inquires into an article of charge or appoints a Board of Inquiry or any other inquiring authority for holding an inquiry into such charge, it may, by an order in writing, appoint a Railway or any other Government servant to be known as Presenting Officer to present on its behalf the case in support of the articles of charge.
18. The provisions of Rule 22 of Railway Servants (Discipline and Appeal ) Rules, 1968 provides for consideration of appeal and Rule 22 (2) (v) provides as under:-
22(2)(v) No order imposing an enhanced penalty shall be made in any other case unless the appellant has been given a reasonable opportunity, as far as may be in accordance with the provisions of Rule 11, of making a representation against such enhanced penalty.
19. The bare reading of the aforesaid provisions shows and provides for procedure for imposing the penalty and disposal of appeal. The procedure for imposing major penalty is provided that the same can be done only after an enquiry is held and in the instant case, the full-fledged enquiry is conducted and only thereafter, the disciplinary authority came to the conclusion for imposing the penalty. Rule 22 (2)( v) provides for enhancement of penalty and the same can be made only after giving a reasonable opportunity for making a representation against such enhanced penalty. In the instant case, before enhancing the penalty by the Appellate authority, a show cause notice is given to the applicant and applicant has also submitted the reply to the same, as such the grounds taken by the applicant are not tenable in the eyes of law, as such liable to be rejected.
20. The case laws so cited by the applicant are also in respect of natural justice. In the instant case, the provision of natural justice are not violated as the applicant has been given full opportunity to participate in the enquiry.
21. Learned counsel for respondents relied upon certain decisions of the Honble Apex Court and has also indicated that interference is not permissible unless the order is contrary to law or the decision taken by the disciplinary authority is perverse, without jurisdiction and adequacy or reliability of evidence.
22. Apart from this, it is also indicated that after being transferred from Gonda to Mailani, the applicant remained unauthorisedly absent and after issuance of charge sheet, he has made no sincere and bonafide effort to participate in the enquiry initiated for his unauthorized absent from duty. Apart from this there is no legal right for leave unless it is sanctioned by the competent authority for which information had been furnished prior to seeking the said leave.
23. Apart from this, the applicant has given leave application on the ground of his wifes illness without any medical certificate. As such, any leave without supporting medical certificate would further give no right for sanction of any leave without any prior sanction from the competent authority.
24. As such, it is clear that the applicant remained unauthorisedly absent, therefore, the charge sheet is issued by the competent authority and when the enquiry was initiated, he again deliberately failed to take opportunity in the inquiry proceedings. Therefore, he has been rightly punished by the disciplinary authority. The appellate authority has also again given him opportunity to show cause as per extant rules and thereafter, the appellate authority passed the order.
25. The learned counsel for respondents relied upon a decision in the case of Canara Bank Vs Devashish Das reported in 2003 94) SCC 557 and has indicated that the applicant was required to place the material in order to show the prejudice, if any caused in the disciplinary inquiry.
26. The same view is taken by the Honble Apex Court in the case of K.C. Ahuja reported in 2008(9) SCC 31. It is also submitted that if there is no prejudice is caused, then the order passed by the disciplinary authority cannot be interfered with on any ground.
27. In the case of K.C. Rahi reported in 2008(11) SCC 502, the Honble Apex Court has been pleased to observe that Inspite of the knowledge of the inquiry proceedings, the delinquent officer chosen not to participate in the enquiry then the principle of violation of natural justice are not violated.
28. The Honble Apex Court in the case of B.C.Chaturvedi v. Union of India & Ors. Reported in 1995 (6) SCC 749 again has been pleased to observe that the scope of judicial review in disciplinary proceedings the Court are not competent and cannot appreciate the evidence . In this regard, the Honble Apex Court has been pleased to observe as under:-
The Enquiry Officer submitted his report holding the charges against the appellant to have been proved. After consultation with the UPSC, the appellant was dismissed from service by an order dated 29.10.1986.The Tribunal after appreciating the evidence, upheld all the charges as having been proved but converted the order of dismissal into one of compulsory retirement. The delinquent filed an appeal challenging the finding on merits, and the Union filed an appeal canvassing the jurisdiction of the Tribunal to interfere with the punishment imposed by it. Allowing the appeal of the Union of India and dismissing that of the delinquent.
Per Ramaswamy and Jeevan Reddy, JJ Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal 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 each case.
29. In another case the Honble Apex Court in the case of Union of India v. Upendra Singh reported in 1994(3)SCC 357 has been pleased to observe that the scope of judicial review in disciplinary enquiry is very limited. The Honble Apex Court has been pleased to observe as under:-
In the case of charges framed in a disciplinary inquiry the Tribunal or Court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or other irregularity alleged can be said to have been made out or the charges framed are contrary to any law. At this stage, the tribunal has no jurisdiction to go into the correctness or truth of the charges. The tribunal cannot take over the functions of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be.
30. Not only this the Honble Apex Court has even pleased to observe in regard to scope of judicial review as well as in regard to the quantum of punishment and in the case of State of Rajasthan Vs. Md. Ayub Naaz reported in 2006 (1) SCC 589. The Honble Apex Court has been pleased to observe as under:-
10. This Court in Om Kumar and Others vs. Union of India, (2001) 2 SCC 386 while considering the quantum of punishment / proportionality has observed that in determining the quantum, role of administrative authority is primary and that of court is secondary, confined to see if discretion exercised by the administrative authority caused excessive infringement of rights. In the instant case, the authorities have not omitted any relevant materials nor any irrelevant fact taken into account nor any illegality committed by the authority nor the punishment awarded was shockingly disproportionate. The punishment was awarded in the instant case, after considering all the relevant materials and, therefore, in our view, the interference by the High Court on reduction of punishment of removal is not called for.
12. In this context, we can usefully refer to B.C. Chaturvedi vs. Union of India and others, (3 Judges) wherein this Court held thus: (AIR p.484) "Ramaswamy, J for himself and B.P. Reddy, J. - Disciplinary authority and on appeals, appellate authority are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court / Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court / Tribunal; it would appropriately mould the relief, either directing the disciplinary / appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
14. This Court in B.C. Chaturvedi vs. Union of India and others (supra) further held that the Court / Tribunal cannot interfere with the findings of fact based on evidence and substitute its own independent findings and that where findings of disciplinary authority or appellate authority are based on some evidence Court / Tribunal cannot re-appreciate the evidence and substitute its own findings. Observing further, this Court held that judicial review is not an appeal from a decision but a review of the manner in which the decision is made and that power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. This Court further held as follows:
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 re-appreciate the evidence or the nature of punishment. The Court / Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court / Tribunal may interfere where the authority held that 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. V. Ramana vs. A.P. SRTC and others (2005) 7 SCC 338(Arijit Pasayat and H.K. Sema, JJ.) the challenge in the above matter is to the legality of the judgment rendered by a Full Bench of the Andhra Pradesh High Court holding that the order of termination passed in the departmental proceedings against the appellant was justified. This Court in para 11 has observed thus:
11. The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case 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 for that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision."
31. Considering the observations of the Honble Apex Court as well as facts and circumstances of the case, the full-fledged enquiry was conducted as such, we are not inclined to interfere in the present O.A.
32. Accordingly, the O.A. is dismissed. No order as to costs.
(Ms. Jayati Chandra) (Navneet Kumar) Member (A) Member (J) HLS/-