Central Administrative Tribunal - Kolkata
Yogesh Tiwari vs Power on 1 November, 2025
1
CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH, KOLKATA
(CIRCUIT AT PORT BLAIR)
No.O.A. 351/1325/A&N/2024 Date of Hearing : 13.09.2025
Date of Order: 01.11.2025
Present : Hon'ble Mrs.UrmitaDatta (Sen), Judicial Member
Hon'ble Mr.Suchitto Kumar Das, Administrative Member
Yogesh Tiwari, son of Late Sambhu Nath Tiwari, aged
about 55 years, working as a Junior Engineer in the
Electricity Department, Andaman & Nicobar
Administration and residing at Nayagaon, P.O. Shadipur,
P.S. Aberdeen, Port Blair, Andaman & Nicobar Islands,
PIN 744106.
.............Applicant
- VERSUS-
1. Union of India, Service through Secretary,
Ministry of Power, Government of India, Shram
Shakti Bhawan, Rafi Marg, New Delhi- 110 001;
2. The Chief Secretary, Andaman & Nicobar
Administration, Secretariat Building,
Port Blair- 744 101;
3. The Commissioner cum Secretary (Power),
Andaman & Nicobar Administration,
Secretariat Building, Port Blair-744101;
4. The Secretary (Power), Andaman & Nicobar
Administration, Secretariat Building,
Port Blair- 744 101;
5. The Director (Power), Andaman & Nicobar
Administration, Secretariat Building,
Port Blair- 744 101;
6. The Superintending Engineer, Office of
Superintending Engineer, Electricity Department,
Andaman & Nicobar Administration,
Port Blair-744 101;
Digitally signed by SOMA BANDYOPADHYAY
SOMA DN: C=IN, O=Personal, T=6794, OID.2.5.4.65=133596418541584061RzFJVlZ8C5fhN1, Phone=
248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S=
West Bengal, SERIALNUMBER=
f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN=SOMA
BANDYOPADHYAY
BANDYOPADHYAY
Reason: I am the author of this document
Location:
Date: 2025.11.03 16:17:19+05'30'
Foxit PDF Reader Version: 2025.1.0
2
7. The Disciplinary Authority, Andaman &
Nicobar Administration, Secretariat Building,
Port Blair- 744 101;
8. The Inquiring Authority, having its office at
Additional Principal, Chief Conservator of
Forest (Administration & Vigilance), Van
Sadan, Haddo, Port Blair;
9. The Presenting Officer, Assistant Accountant
Officer, having its office at Directorate of
Agriculture, Andaman & Nicobar Administration,
Port Blair;
10.The Assistant Secretary (Vigilance), Andaman
& Nicobar Administration, having its office at
Secretariat Building, Port Blair-744 101
............Respondents
For the Applicant : Mr. D.C. Kabir, Counsel
Mr. S. Ajith Prasad, Counsel
For the Respondents : Mr. R. Kumar, Counsel
ORDER
Urmita Datta (Sen) Judicial Member:
The applicant has preferred this O.A. under Section under Section 19 of Administrative Tribunals Act, 1985 seeking the following reliefs:-
"a) A direction upon the concerned respondents and/or their men and agents to show cause as to why the memorandum of charges and the disciplinary proceeding in connection thereto against the Applicant shall not be quashed and/or set-aside, and if no satisfactory reply is received, do quash and/or set aside the impugned disciplinary proceeding;
b) A direction to hand over the entire records of all the charged officers (including Smt. Madhuri Shukla & the Applicant) pertaining to the above referred disciplinary proceeding to any independent Central Agency, if at all this Hon'ble Tribunal directs the proceedings to continue, for the ends of justice;
c) A direction upon the concerned respondents to transmit and to certify the entire records of the case before this Learned Tribunal;Digitally signed by SOMA BANDYOPADHYAY
SOMA DN: C=IN, O=Personal, T=6794, OID.2.5.4.65=133596418541584061RzFJVlZ8C5fhN1, Phone= 248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S= West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN=SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
Date: 2025.11.03 16:17:19+05'30' Foxit PDF Reader Version: 2025.1.0 3
d) Costs incidental to the instant application; and
e) Any other order or orders as this Learned Tribunal deems fit and proper."
2. Facts of the case as submitted by the applicant in the instant O.A. are as follows:-
(a) The applicant while working as Junior Engineer in Electricity Department of Andaman and Nicobar Administration was served with a Memorandum of Charges dated 20.08.2022 (Annexure A/5) along with list of documents and list of witnesses under Rule 14 of CCS (CCA) Rules, 1965 by the Lieutenant Governor, A&N Administration on the ground that while functioning as Assistant Engineer (Planning)(i/c), he had prepared the draft affidavits dated 10.08.2020 and 24.09.2020 for filing of reply on behalf of the Administration before the Joint Electricity Regulatory Commission (hereinafter referred to as JERC). It is further alleged that said Affidavits were filed in response to two separate petitions filed by hoteliers in the JERC without taking into account the observations of the Lieutenant Governor, without vetting by the Law/Finance Department and without taking approval of the Competent Authority, which resulted in passing of orders by JERC for bringing hotels under Industrial category instead of Commercial category and thereby favouring the hoteliers. The said Charge Sheet was issued on the basis of a Vigilance Committee Report dated 19.11.2021 (Annexure A/2).
(b) The applicant submitted a reply denying the allegations leveled against him vide letter dated 22.08.2022 (Annexure A/6), wherein he Digitally signed by SOMA BANDYOPADHYAY SOMA DN: C=IN, O=Personal, T=6794, OID.2.5.4.65=133596418541584061RzFJVlZ8C5fhN1, Phone= 248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S= West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN=SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
Date: 2025.11.03 16:17:19+05'30' Foxit PDF Reader Version: 2025.1.0 4 has stated that during the relevant period, he was working in the capacity of Junior Engineer (Planning) w.e.f. 14.01.2009 to 26.11.2020. However, it is stated by the applicant that vide Order dated 01.04.2015, he was directed only to look after the additional charges of Assistant Engineer (Planning) in addition of his duties of Junior Engineer (Planning) and he was relieved from Planning Section on 25.11.2020.
( c) In reply to the Charge Memorandum, he has stated that before submitting the affidavits dated 10.08.2020 & 24.09.2020, he had taken approval of HoD (Superintending Engineer) during July, 2020 and proposed the higher authorities to consult with the Legal Counsel of the Department for preparing the reply with the intent to safeguard the interest of the Administration. After discussion, the revised draft affidavit dated 10.08.2020 was handed over to him without making any change with a direction to put up the same for vetting and approval by the competent authority. It is further stated by the applicant that when the file was received back at Planning Section, he was ill due to Covid (though available over phone). However, the matter was not brought to his knowledge by the authorities concerned that without vetting by the Law and Finance and Lieutenant Governor (hereinafter referred to as L.G.), the said affidavit was signed and filed by the then S.E., therefore, he should not be held responsible for filing the said affidavit in any manner.
Digitally signed by SOMA BANDYOPADHYAY SOMA DN: C=IN, O=Personal, T=6794, OID.2.5.4.65=133596418541584061RzFJVlZ8C5fhN1, Phone= 248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S= West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN=SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
Date: 2025.11.03 16:17:19+05'30' Foxit PDF Reader Version: 2025.1.0 5 So far as filing of the Affidavit dated 24.09.2020 is concerned, the applicant has submitted in his reply that it was prepared on the lines of the earlier submissions made in the affidavit dated 10.08.2020 by the then Learned Counsel for the department and was put up on file for vetting and approval of the competent authority. It has further been submitted by the applicant that at that time, he had informed the then SE in-person that vetting by Law & Finance and LG was required in the matter. However as per decision of the higher authorities concerned, the said Affidavit was filed before the JERC by the then S.E. without consulting Law/Finance Department and also the L.G. for which he should not be held responsible.
(d) The respondent authorities have appointed the Inquiry Officer and Presenting Officer vide Orders No.1804 and 1805 dated 21/23.06.2023 (Annexure A/7) to conduct the disciplinary proceeding against the applicant. Thereafter enquiry was held on different dates and the detailed reports of examination and cross examination were submitted, which are annexed as Annexure A/8 to the O.A. The applicant has filed a Statement of Defence dated 16.02.2024 (Annexure A/10). In the said Statement of Defence, it was submitted by the applicant that the Draft Affidavit in question had not been produced by the prosecution for cross examination to establish that he had prepared the Draft Affidavit, which was alleged to be in violation of the direction of the L.G. He has also stated that the file was not routed through him after approval of competent authority and reached directly to the dealing Assistant after being routed through higher Digitally signed by SOMA BANDYOPADHYAY SOMA DN: C=IN, O=Personal, T=6794, OID.2.5.4.65=133596418541584061RzFJVlZ8C5fhN1, Phone= 248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S= West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN=SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
Date: 2025.11.03 16:17:19+05'30' Foxit PDF Reader Version: 2025.1.0 6 authorities and filed before the JERC without consulting/approval of the Finance and Law Department, therefore, he had no role to play in the matter. He had also submitted in the Statement of Defence that he was not even shown the Affidavit dated 10.08.2020 before filing of the same.
e) The applicant has submitted a detailed Written Brief dated 20.02.2024 (Annexure A/10) denying the charges leveled against him. However, the Inquiry Officer, after conducting inquiry in the matter, had submitted Inquiry Report dated 29.02.2024 (Annexure A/14) to the Disciplinary Authority stating that the charges framed against the Charged Officer were substantially proved. The Disciplinary Authority had disagreed with one of the findings of the Inquiry Report that "Another component of charge that the act of the CO has led to passing of order by JERC for bringing hotels under industrial category which is estimated to have resulted in recurrent and serious loss to the exchequer is not proved" and submitted a Disagreement Note vide Order dated 05/8.08.2024 (Annexure A/15).
A copy of the Disagreement Note with a copy of the Inquiry report was served to the applicant to enable him to file representation against the same within a period of 15 days from receipt of the said Disagreement Note with a stipulation that if no representation be filed within such time, it would be inferred that he had no submission to make and further decision would be taken without any further notice.
Digitally signed by SOMA BANDYOPADHYAY SOMA DN: C=IN, O=Personal, T=6794, OID.2.5.4.65=133596418541584061RzFJVlZ8C5fhN1, Phone= 248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S= West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN=SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
Date: 2025.11.03 16:17:19+05'30' Foxit PDF Reader Version: 2025.1.0 7
f) The applicant had filed a representation dated 01.08.2023 against the Disagreement Note passed by the Disciplinary Authority as well as the Inquiry Report dated 21/23.06.2023 (Annexure A/16), wherein he denied the allegations made against him and asked for some more time to go through the prosecution documents. The applicant has further stated in his representation that in the disciplinary proceeding against him, the Appellate Authority has acted as the Disciplinary Authority, therefore, he has lost one forum of appeal.
(g) The applicant has averred that disciplinary proceeding was initiated against four officials including the applicant for filing the aforementioned Affidavits dated 10.08.2020 and 24.09.2020 without proper vetting/approval of competent authority before the JERC, who had observed in their letter dated 02.09.2021 to the Joint Secretary (R&R), Ministry of Power, that the Electricity Department had always found inclined to charge Hotels under industrial category instead of commercial category and favoured/towed the line of hoteliers for granting industrial tariff. Being aggrieved, the applicant has approached this Tribunal praying for the aforesaid reliefs.
3. The respondents have refuted the claims of the applicant by filing written reply to the O.A., wherein they have submitted as under:-
(a) The A&N Administrative had conveyed the administrative approval vide letter dated 27.05.2011 for realizing the power tariff under industrial category from hotels registered under Industrial Act.
The JERC vide Order dated 20.05.2019 had directed to charge tariff under commercial category from all hotels. Thereafter, vide Tariff Digitally signed by SOMA BANDYOPADHYAY SOMA DN: C=IN, O=Personal, T=6794, OID.2.5.4.65=133596418541584061RzFJVlZ8C5fhN1, Phone= 248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S= West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN=SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
Date: 2025.11.03 16:17:19+05'30' Foxit PDF Reader Version: 2025.1.0 8 Order for the years 2022-23, 2023-24 & 2024-25, the Commission introduced a separate category for hotel establishments. The Tariff Order for the year 2022-2023 was given effect from 01.08.2022. However, some hoteliers against whom commercial rate of electricity was imposed, had filed Tariff Petitions before the JERC, An Order dated 20.05.2019 was passed by the JERC, wherein the Electricity Department of Andaman & Nicobar Administration was directed to ensure the applicability of tariff of Industrial Category instead of Commercial Category to all the Hotels and Restaurants. Further, the Review Petitions Nos.30/2020 and 31/2020 filed before the JERC were allowed vide Order dated 02.12.2020 in view of the unauthorized concession given by the officers and the Administration took strict action against the erring officials for filing the aforesaid Affidavits in support of the Hoteliers.
(b) It is further stated by the respondents that a Vigilance Enquiry was held in the matter and a Vigilance Report was submitted on 19.11.2021 regarding such act of some officers/officials regarding categorizing the hotels under Industrial category in disobedience to the directions given by the L.G., A&N Administration, which caused huge financial loss to the Electricity Department of A&N Administration. As a result, disciplinary action was proposed to be taken by the A&N Administration against the officers, who were involved in the matter. The applicant was amongst one of those officers. Accordingly, disciplinary proceeding was conducted against the applicant by issuing Charge Memorandum dated Digitally signed by SOMA BANDYOPADHYAY SOMA DN: C=IN, O=Personal, T=6794, OID.2.5.4.65=133596418541584061RzFJVlZ8C5fhN1, Phone= 248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S= West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN=SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
Date: 2025.11.03 16:17:19+05'30' Foxit PDF Reader Version: 2025.1.0 9 20.08.2022 (Annexure A/5) as mentioned above. Before issuing the said Charge Memorandum, Show Cause Notice was issued to the applicant and he had filed reply to the same on 22.04.2022. After receipt of Charge Memorandum, the applicant had also filed a reply to the same denying all the charges leveled against him. Therefore, inquiry was conducted as per rules by appointing Inquiry Officer and Presenting Officer by giving every opportunity to the applicant to defend his case as per rules.
(c ) However, the applicant has approached this Tribunal during pendency of the disciplinary proceeding against him by filing this O.A.. After hearing the matter, the Tribunal vide its order dated 12.09.2024 had admitted the matter for adjudication and allowed time to the respondents for filing reply and further directed the respondents not to pass any final order in the disciplinary proceeding as an interim measure. The said interim Order dated 12.09.2024 was continued from time to time till today. According to the respondents, the applicant was duly proceeded by the Department for filing of the two Affidavits before the JERC without having approval of the competent authorities as mentioned above. Therefore, no irregularity or illegality was committed by the respondents and this O.A. is liable to be dismissed as being misconceived, baseless and not tenable in the eye of law.
4. Heard Learned Counsel for both sides and perused the pleadings and documents placed on record.
Digitally signed by SOMA BANDYOPADHYAY SOMA DN: C=IN, O=Personal, T=6794, OID.2.5.4.65=133596418541584061RzFJVlZ8C5fhN1, Phone= 248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S= West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN=SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
Date: 2025.11.03 16:17:19+05'30' Foxit PDF Reader Version: 2025.1.0 10
5. Learned Counsel for the applicant has placed his arguments in the following manner:-
(i) The applicant was holding the substantive post of Junior Engineer and was never appointed to the post of Assistant Engineer (Planning) even on a temporary basis or on current duty charge basis, hence, the Disciplinary Authority for the applicant is not the L.G. but the Chief Secretary and the L.G. is the Appellate Authority in his case. As per the Learned Counsel, in the disciplinary proceeding, the applicant has lost a forum, as in his case, the Appellate Authority i.e. the Lieutenant Governor has acted as Disciplinary Authority, which amounts to violation of principle of natural justice;
(ii) He has further stated that responsibility of approving and affirming affidavits lies on the authority so empowered do so and not the applicant, who has neither affirmed nor authorized the Affidavits. According to the Learned Counsel for the applicant, he has not even drafted the Affidavits and those Affidavits were sent to JERC under the signature of different authorities without his knowledge, therefore, the allegation that the applicant had not recommended vetting/approval of the Affidavits to Law Department and also the L.G is factually incorrect;
(iii) Learned Counsel for the applicant has vehemently argued that different standards were adopted amongst four employees, whose names were mentioned in the Vigilance Report, which amounts to violation of the Article 14 of the Constitution. It is stated by the Digitally signed by SOMA BANDYOPADHYAY SOMA DN: C=IN, O=Personal, T=6794, OID.2.5.4.65=133596418541584061RzFJVlZ8C5fhN1, Phone= 248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S= West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN=SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
Date: 2025.11.03 16:17:19+05'30' Foxit PDF Reader Version: 2025.1.0 11 Learned Counsel for the applicant that subsequently allegation in respect of one of the accused was undermined in the Central Vigilance Commission advice, which applies equally to the applicant being similarly situated.
(iv) As per the Learned Counsel for the applicant, submission of an affidavit on the policy in force at that time, which was admitted by the Administration and based on admitted records, was absolutely correct as the future envisaged policy or discussions thereupon do not constitute policy in force;
(v) Learned Counsel has stated that the allegation against the applicant that he did not recommend vetting of the affidavits by the law department and taking opinion of the Lieutenant Governor is factually incorrect. The ingredients of misconduct as alleged in the memorandum of charges cannot be said to be made out against the applicant on merit;
(vi) Learned Counsel for the applicant has relied on the following judgments of Hon'ble Supreme Court:-
(a) Ramakant Shripad Sinai Advalpalkar v. Union of India, AIR 1991 SC 1145, Para 4;
(b) Ajaib Singh v. State of Punjab, AIR 1965 SC 1619, Para 12;
(c) State of Punjab v. Arun Kumar Agarwal, (2007)10 SCC 402, Paras 12,13,14,15;
(d) Gopalji Khanna v. Allahabad Bank, AIR 1996 SC 1729, Paras 7,8,9,10,11,12;
(e) Union of India v. J. Ahmed, AIR 1979 SC 1022, paras 6,9,10,11,12,17;Digitally signed by SOMA BANDYOPADHYAY
SOMA DN: C=IN, O=Personal, T=6794, OID.2.5.4.65=133596418541584061RzFJVlZ8C5fhN1, Phone= 248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S= West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN=SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
Date: 2025.11.03 16:17:19+05'30' Foxit PDF Reader Version: 2025.1.0 12
(f) Union of India v. Parma Nand, AIR 1989 SC 1185, Para 10,11,13,18,19,26,27
6. On the other hand, Learned Counsel for the respondents has submitted as follows
(a) From perusal of the Inquiry Report, it would be clear that the charged officer (henceforth referred to as CO) i.e. the applicant has neither demanded the draft Affidavit, which was stated to be a "material evidence" nor raised any objection about non-providing of the same during commencement of the Inquiry. He has further submitted that CO has also not raised any question regarding issuance of charge sheet by the L.G. until the Disagreement Note was served upon him, therefore, contention of the applicant that he was deprived of one forum in disciplinary proceeding is not acceptable at this stage.
(b) It is further stated that while putting up the tariff petition for approval, the Department had clearly mentioned that the proposal needed approval of L.G., therefore, it is evident that the CO either intentionally or negligently failed to mention these facts while putting up the proposal through documents under P-5, thereby misleading his higher authorities.
(c) Learned Counsel for the respondents has also submitted that the scope of judicial review in the matter of disciplinary proceeding is very limited as per law laid down by the Hon'ble Apex Court in a catena of its decisions. In this regard, he has Digitally signed by SOMA BANDYOPADHYAY SOMA DN: C=IN, O=Personal, T=6794, OID.2.5.4.65=133596418541584061RzFJVlZ8C5fhN1, Phone= 248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S= West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN=SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
Date: 2025.11.03 16:17:19+05'30' Foxit PDF Reader Version: 2025.1.0 13 placed on record an Office Memorandum dated 28.02.1990 in this regard, which reads as follows:-
"The undersigned is directed to say that a number of cases have come to the notice of this Department where the CAT, though agreeing with the decision of the disciplinary authority to hold the charges against a delinquent Government servant as proved, have modified the quantum of penalty on their own discretion. The question whether the Tribunal could interfere. with the penalty awarded by the competent authority on the ground that it is excessive or disproportionate to the misconduct proved, was examined by the Supreme Court in the case of Shri Parma Nanda Vs. State of Haryana and others (1989 (2) Supreme Court Cases 177) and the Court held that the Tribunal could exercise only such powers which the civil courts or the High Courts could have exercised by way of judicial review. The Supreme Court in that case further observed as under:
Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx "The jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse.. The power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Art.309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is malafide is certainly not a matter for the Tribunal to concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter.
Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx We may, however, carve out one exception to this proposal. There may be cases where the penalty is imposed under Clause (a) of the second proviso to Art, 311(2) of the Constitution. Where the person without inquiry is dismissed, removed or reduced in rank solely on the basis of conviction (......not legible) a criminal court, the Tribunal may examine the (.....not legible) of the penalty imposed in the light of the conviction and sentence inflicted on the person. If the penalty impugned is apparently unreasonable or uncalled for, having regard to the nature of the criminal charge, the Tribunal may step in to render substantial justice. The Tribunal may remit the matter to the competent Digitally signed by SOMA BANDYOPADHYAY SOMA DN: C=IN, O=Personal, T=6794, OID.2.5.4.65=133596418541584061RzFJVlZ8C5fhN1, Phone= 248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S= West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN=SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
Date: 2025.11.03 16:17:19+05'30' Foxit PDF Reader Version: 2025.1.0 14 authority for reconsideration or by itself substitute one of the penalties provided under Clause (a)."
2 Ministry of Agriculture etc, are requested to bring the above ruling of the Supreme Court to the notice of all concerned authorities so that the same is appropriately referred to in all those cases where the question of quantum of penalty comes up before the CAT or Supreme Court by way of SLP or otherwise."
(d) Learned Counsel for the respondents has further submitted that it is not necessary that the charges should be framed by the authority competent to award the proposed penalty or that the enquiry should be conducted by such authority. In support of his submission he has placed reliance on the judgment of Hon'ble Apex Court in The State of Jharkhand vs. Rukma Kesh Mishra in Civil Appeal arising out of SLP (C) No.19223 of 2024, wherein the Hon'ble Supreme Court has referred to its earlier decisions, allowed the appeal of the respondents and did not interfere with the decision of the authorities in case of disciplinary proceedings against the employee. Therefore, the interim order dated 12.09.2024 may be vacated, the O.A. should be dismissed and the department may be allowed to complete the departmental proceeding against the applicant as per rules.
7. From perusal of the above submissions as well as the documents on record, it is admitted position that the hotels at Andaman and Nicobar Islands were charged under commercial category from 2011 to 20.05.2019 i.e. the date when Tariff order was issued by the JERC. However, the hotels with status of MSME/industries were given industrial tariff. This was done as per administrative Digitally signed by SOMA BANDYOPADHYAY SOMA DN: C=IN, O=Personal, T=6794, OID.2.5.4.65=133596418541584061RzFJVlZ8C5fhN1, Phone= 248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S= West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN=SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
Date: 2025.11.03 16:17:19+05'30' Foxit PDF Reader Version: 2025.1.0 15 approval for realizing power tariff under industrial category from hotels and restaurants registered under Industrial Act/MSME Act. Before that, there was an Order of L.G. dated 06.03.1987, whereby it was directed that tourism was to be treated as industry and those engaged in tourism activities in the whole UT of A&N Islands would be eligible for concessions/incentives as applicable to industrial sector including concession in electricity charges. As per letter dated 02.03.2010, the G.M./Joint Secretary, District Industries Centre requested the Superintending Engineer that hotels and restaurants registered as MSMEs were eligible for all facilities and incentives and so electricity should be levied as per rates for industrial sector. Thereafter a Circular dated 04.03.2011 was issued by the then Assistant Engineer (Planning) communicating the decision of the Chief Secretary that the hotels/restaurants at A&N Islands declared as industry by the industries department shall be charged based on tariff rate applicable to industrial consumers as per Order of A&N Administration dated 07.02.2008.
8. After passing of the tariff order dated 20.05.2019, a letter dated 20.09.2019 was sent to the L.G by the Minister of State, Tourism and Culture for taking up the matter before the JERC for levy of tariff for hotels under industrial category instead of commercial category. L.G. directed the Electricity Department on 05.12.2019 to ascertain the factual position about the categories of electricity tariffs as per which electricity charges were realized from hotels. The LG raised some queries about industrial tariffs being used for hotels under MSME on 19.12.2019. Thereafter Order dated 27.12.2019 was issued by the Superintending Engineer clarifying the background on the basis of the letter from the Minister of State for Tourism and Culture. As per the applicant, the department suppressed all Digitally signed by SOMA BANDYOPADHYAY SOMA DN: C=IN, O=Personal, T=6794, OID.2.5.4.65=133596418541584061RzFJVlZ8C5fhN1, Phone= 248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S= West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN=SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
Date: 2025.11.03 16:17:19+05'30' Foxit PDF Reader Version: 2025.1.0 16 these material facts before the JERC while replying to the tariff petitions and the applicant was made a scapegoat in the matter.
9. We find that the JERC made it clear to the Secretary, Ministry of Power by letter dated 02.09.2021 that the Administration was at fault because it had been charging industrial tariff in case of some hotels under administrative orders whereas before JERC they kept on saying the tariff charged against the hotels were commercial.
10. However, we have perused the judgments placed by Learned Counsel for both sides. In Ramakant Shripad Sinai Advalpalkar v. Union of India, AIR 1991 SC 1145, it has been held by Hon'ble Supreme Court that "....officer substantively holding some lower post if asked merely to discharge duties of some higher post cannot be treated as promotion." It has further been held that "In such cases, the officer concerned does not get salary of higher post, therefore, no rights, equities or expectation could be built upon it." Same view was taken by the Hon'ble Supreme Court in the judgments of Hon'ble Supreme Court mentioned at Paragraph 5(vi) (b) (c) (d). In Union of India v. J. Ahmed, AIR 1979 SC 1022, the Hon'ble Apex Court has observed that ".....in present case however appellant found guilty of being negligent while performing his duties which is not misconduct" In the said judgment, it has further been mentioned that "Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct."
11. In case of Union of India v. Parma Nand, AIR 1989 SC 1185, which was relied on by the counsel for both sides, Hon'ble Supreme Court while setting aside the Order of the Tribunal, has opined that "The Tribunal cannot interfere with findings of inquiry officer or competent authority where findings are not arbitrary or utterly perverse." Digitally signed by SOMA BANDYOPADHYAY
SOMA DN: C=IN, O=Personal, T=6794, OID.2.5.4.65=133596418541584061RzFJVlZ8C5fhN1, Phone= 248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S= West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN=SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
Date: 2025.11.03 16:17:19+05'30' Foxit PDF Reader Version: 2025.1.0 17
12. In the instant case, we find that the applicant was holding a substantive post of Junior Engineer and was never appointed to the post of Assistant Engineer (Planning) even on a temporary basis or on current duty charge basis, hence, the Disciplinary Authority for the applicant was not the L.G. but the Chief Secretary and the L.G. was his Appellate Authority. However, it transpires that the L.G. has acted as Disciplinary Authority in case of the applicant due to which the applicant has lost a forum, which amounts to violation of the principles of natural justice.
13. It is noted that though the respondents have referred to the case of Parma Nand (supra), the facts of the said case is quite distinguishable with the facts in the instant case. In the said case, one subordinate authority had initiated disciplinary proceedings against the applicant and there was no question of loss of one forum for approaching on appeal, whereas in the instant case, the Appellate Authority has acted as the Disciplinary Authority and therefore, there was loss of one forum to appeal. As per the CCS Rules, in case of disagreement with the opinion of Disciplinary Authority while reviewing suo moto the case of the delinquent the disciplinary authority of the applicant cannot be the Lieutenant Governor as the applicant is a Group 'B' Officer (JE) and not even holding the post of Assistant Engineer on current duty charge (only looking after the duty of AE). Therefore, in our considered opinion, the contention of the applicant that in his case, Disciplinary Authority is the Chief Secretary and not the Lieutenant Governor is correct.
14. It transpires from record that four persons were involved in the matter but the other accused persons acted as witness during the disciplinary proceedings against the applicant, which is not maintainable as per rules. During the course of hearing, Learned Counsel for the applicant has also cited the case of Smt. Madhuri Digitally signed by SOMA BANDYOPADHYAY SOMA DN: C=IN, O=Personal, T=6794, OID.2.5.4.65=133596418541584061RzFJVlZ8C5fhN1, Phone= 248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S= West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN=SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
Date: 2025.11.03 16:17:19+05'30' Foxit PDF Reader Version: 2025.1.0 18 Shukla, Executive Engineer, Electricity Department, Port Blair, who was also one of the accused in the matter and similarly situated with the applicant. Smt. Madhuri Shukla was also issued chargesheet by the Lieutenant Governor on the same charges as levelled against the applicant. Challenging the said Charge Memorandum she had approached this Tribunal by filing O.A.No.351/1838/2022, which was disposed of vide Order dated 11.12.2023 with the following observations:-
"10. We are of the view that that since the officer has been charged with causing loss to the exchequer, the charges against applicant have, prima facie, a vigilance angle The applicant is a Group A officer. As per Para 1.6 of the Vigilance Manual of the Central Vigilance Commission (CVC), the commission is required to be consulted in all cases in respect of public servants specified in section 8 (2) of the CVC Act, 2003, after conclusion of the preliminary enquiry/investigation and before issue of the chargesheet. Group A officers of the Central Government and Union Territory Administrations are included in Section 8 (2) of the CVC act, 2003. Hence, the Disciplinary Authority ought to have obtained "First Stage Advice from the Central Vigilance Commission before issue of the impugned chargesheet.
However, since we are informed that the disciplinary proceedings against the applicant have already commenced, we are not inclined to interfere with the same at this stage. However, we direct the respondents to complete the disciplinary proceedings against the applicant expeditiously in any case within the 03 months from the date of the issue of this order. We further direct that the disciplinary authority shall obtain the "Second Stage of Advice of Central Vigilance Commission before taking a final decision on the disciplinary proceeding initiated against the applicant vide Memorandum dated 20th August, 2022.
11. With the aforesaid directions, this matter is disposed of." Subsequently an Order No.649 dated 18th March, 2025 was passed by the Secretary(Power) in respect of Smt. Madhuri Shukla, whereby she was exonerated from all the charges after taking advice from CVC and direction was given for treating the whole period of her suspension as on duty for all purposes. The entire order is reproduced below for ready reference:- Digitally signed by SOMA BANDYOPADHYAY
SOMA DN: C=IN, O=Personal, T=6794, OID.2.5.4.65=133596418541584061RzFJVlZ8C5fhN1, Phone= 248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S= West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN=SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
Date: 2025.11.03 16:17:19+05'30' Foxit PDF Reader Version: 2025.1.0 19 "WHEREAS, Smti Madhuri Shukla while working as Executive Engineer (NRSE), Electricity Department, Sri Vijaya Puram was placed under suspension vide Hon'ble Lt. Governor (i.e. Disciplinary Authority) A&N Administration's Order No.2578 dated 26.11.2021.
AND WHEREAS. the said suspension of Smti Madhuri Shukla, EE(NRSE) was revoked with immediate effect vide Administration's Order No.433 dated 17.02.2023 and she reported for duty on 20.02.2023.
AND WHEREAS, in the interim, a disciplinary proceeding for the above allegation was initiated vide charge memo Mo. 1-18 (22-9)/2022- Power dated 20.08.2022 under Rule 14 of CCS (CCA) Rules 1965.
AND WHEREAS, the Disciplinary Authority (i.e Hon'ble Lt. Governor), A&N Administration after taking into consideration the totality of facts and circumstances, Inquiry Report and advice of CVC rendered vide OM No. 022/04/UTS/006/33100/2024 dated 04.07.2024 ordered for exoneration of Smti Madhuri Shukla, EE (NRSE).
NOW THEREFORE, in terms of the provision of FR 54-B(3)(4) & (8) the suspension period w.e.f 26.11.2021 to 19.02.2023 in respect of Smt Madhuri Shukla, EE (NRSE) shall be treated as period spent on duty for all purposes and she shall draw full pay and allowances as admissible under the Rules during the said period of suspension after adjustment of subsistence allowance already paid.
This issues with the approval of the competent authority."
15. From the above, it is clear that the respondents have taken a lenient view in respect of Smt. Madhuri Shukla and exonerated her from all the charges whereas they are continuing with disciplinary proceedings against the applicant on the self same grounds, which is arbitrary and discriminatory action on the part of the respondents.
16. It is true that the scope of judicial review by the courts or Tribunals are restricted by the Hon'ble Apex Court in several judicial pronouncements, but at the same time, Hon'ble Supreme Court in catena of its decisions has opined that such limitations would be applicable in the cases where there is no mala fide, arbitrary or discriminatory action on the part of the respondents.
Digitally signed by SOMA BANDYOPADHYAY SOMA DN: C=IN, O=Personal, T=6794, OID.2.5.4.65=133596418541584061RzFJVlZ8C5fhN1, Phone= 248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S= West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN=SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
Date: 2025.11.03 16:17:19+05'30' Foxit PDF Reader Version: 2025.1.0 20
17. In the instant case, it is noted that the respondents have conducted disciplinary proceeding against the applicant to punish him though he was in no way involved with the matter of drafting and vetting of the affidavits, whereas they exonerated Smti Madhuri Shukla on the same ground.
18. In view of the above, we are of the considered opinion that when the Chief Secretary is the Disciplinary Authority and L.G. is the Appellate Authority of the applicant, it effectively deprives the applicant of availing a forum for appeal which is a violation of principle of natural justice, which requires that justice must not only be done but also should be seen to be done.
Further, an authority who initiates charges, makes a preliminary opinion about the charged official and it cannot be accepted that he would fairly and objectively review its own decision in an appeal. It is observed that the service rules governing the disciplinary actions provide for right to appeal against an order passed by the disciplinary authority. Therefore, if the Appellate Authority itself acts as a disciplinary authority, it forecloses such right. As a result, the employee is left with no one to appeal under the established administrative process as the rules governing the disciplinary actions typically specify the distinct role for Disciplinary Authority (Punishing Authority) and the Appellate Authority. Initiating proceedings at the Appellate level bypasses the correct procedure and is a legal infirmity. The employee would be deprived of the chances to have his case reviewed with a fresh and Digitally signed by SOMA BANDYOPADHYAY SOMA DN: C=IN, O=Personal, T=6794, OID.2.5.4.65=133596418541584061RzFJVlZ8C5fhN1, Phone= 248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S= West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN=SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
Date: 2025.11.03 16:17:19+05'30' Foxit PDF Reader Version: 2025.1.0 21 independent mind and the avenue of appeal which is a significant legal safeguard would become meaningless.
19. In view of the aforesaid facts and circumstances, we are of the considered opinion that the impugned disciplinary proceeding was conducted against the applicant in an arbitrary, discriminatory manner and without jurisdiction . Accordingly the charge sheet and the entire disciplinary proceeding against the applicant are quashed and set aside with consequential benefits.
20. Accordingly the O.A. stands disposed of. No order as to costs.
Suchitto Kumar Das UrmitaDatta (Sen)
Administrative Member Judicial Member
sb
Digitally signed by SOMA BANDYOPADHYAY
SOMA DN: C=IN, O=Personal, T=6794, OID.2.5.4.65=133596418541584061RzFJVlZ8C5fhN1, Phone=
248a2038712d0767cdf2a9a674eb5cc32aa060bb09eb992ecb181b7a052a187d, PostalCode=700114, S= West Bengal, SERIALNUMBER= f048dc9a9c57abdc8eb507bb0fbc388d2dfdb37eb37045900c3c33b439ae01bc, CN=SOMA BANDYOPADHYAY BANDYOPADHYAY Reason: I am the author of this document Location:
Date: 2025.11.03 16:17:19+05'30' Foxit PDF Reader Version: 2025.1.0