Central Administrative Tribunal - Hyderabad
) V. Raju vs Biswanath Chakraborty And Others ... on 3 October, 2008
IN THE CENTRAL ADMINISTRATIVE TRIBUNAL HYDERABAD BENCH HYDERABAD O.A. 549/07 & 622/07 Date of order: 03-10-2008 Between: 1) V. Raju ... Applicant in OA 549/2007 2) N. Jangaiah ... Applicant in OA 622/2007 A N D 1. The Commander Works Engineer, Military Engineering Service, Mudfort, Secunderabad. 2. The Chief Engineer, Hyderabad Zone, Military Engineering Service, Secunderabad. .. Respondents in both the above OAs. Counsel for the applicants : Mr. P. Naveen Rao Counsel for the respondents : Mr. C. Yadagiri, Addl. CGSC in OA 549/07 Mr. Ramakoteswara Rao for Mr. P. Venkata Rao, Addl. CGSC in OA 622/07 C O R A M : THE HON'BLE MRS. BHARATI RAY, MEMBER (J) THE HON'BLE MR. R. SANTHANAM, MEMBER (A) O R D E R
(Per Hon'ble Mrs. Bharati Ray, Member (J) Since common question of law and facts arise in both these OAs, they are being disposed of by this common order.
2. We have heard Mr. P. Naveen Rao, learned counsel for the applicant in both the OAs, and Mr. C. Yadagiri, Addl. CGSC for the respondents in OA 549/07 and Mr. Ramakoteswara Rao, learned counsel representing Mr. P. Venkata Rao, Addl. CGSC for the respondents in OA 622/07. We have gone through the facts of the case and material papers placed before us and the judgment passed by this Tribunal earlier and the order of the Hon'ble High Court.
3. The applicants herein were appointed as Mazdoors in the office of the 1st respondent on or about 23.2.1988. At the time of their joining, they have produced a school leaving certificate, which was found to be a forged one. They were dismissed from service. The applicant in OA 549/07 filed OA 81/95 before this Tribunal which was disposed of on 20.03.1998 on the same line as was done in the case of the applicant in OA 815/95. In this context it requires to reproduce the direction issued by the Tribunal in OA 815/95:
"It is stated that the applicant is a poor ex-class IV employee and has already become over aged. Hence to get some appointment else where is not possible due to the dismissal order. By the dismissal order he had lost the chance of getting employment in some other government offices. Further the appellate authority himself has quoted in para-4 of the appellate order that the applicant was doing excellent work and shown good conduct during the period of service. That itself is sufficient to forgive him for the misconduct and awarding a lesser punishment instead of dismissal from service. We do see the point in the submission of the learned counsel for the applicant. We also feel that a poor Class-IV employee without knowing the consequences for an act done by him, should not be asked to suffer very much. Hence we feel that a lenient view may have to be taken. But the Court or Tribunals do not have powers to modify the punishment as observed by the Apex Court. Hence we feel that the case of the applicant has to be referred back to Respondent No.2 to re-consider the punishment awarded to the applicant to see whether a lighter punishment can be awarded which in our opinion may meet the ends of justice. "
4. Pursuant to the said order of the Tribunal the appellate authority passed the following order on 23-06-1998:
AND WHEREAS the Appellate Authority is obedience of the said Honourable CAT Hyderabad Bench Order has reconsidered and again gone thoroughly into the details of the case, also keeping in view of the Govt. of India's instructions vide M.H.A., O.M. No.5/1/65-Estt(D), dated 30 Apr 1965, reproduced under Rule 11 of CCS (CC&A) Rules, 1965 with regard to action for furnishing false information at the time of appointment or there has been suppression of any factual information in the Attestation form comes to notice at any time during the service of a person, his services would be liable to be terminated.
AND WHEREAS the Appellate Authority keeping in view of the grievances putforth by the said Shri V. Raju, Ex-Mazdoor and the Govt. instructions on the subject and the fact that it was conclusively and undoubtedly established that the said Shri V. Raju, Ex-Mazdoor deserves the punishment awarded by the Disciplinary Authority on 29 Aug 94, which is just and equitable. There is no scope to interfere with the punishment keeping in view the lapses committed by the applicant.
AND WHEREAS the Appellate Authority, therefore, reconsidered the punishment already awarded to Shri V. Raju, ex-Mazdoor by the Disciplinary Authority and considering the facts and circumstances of the case felt that there is no need to reduce the quantum of the penalty awarded to Shri V. Raju, Ex-Mazdoor.
5. It is the contention of the applicants that pursuant to the judgment of this Tribunal (supra) the 2nd respondent passed order dated 25.06.1998 confirming the penalty of dismissal from service without moderating the punishment as directed by the Tribunal. Being aggrieved by the said order of the appellate authority dated 25-06-1998, the applicant in OA 549/2007 approached this Tribunal once again by filing OA 945/1998 and this Tribunal vide its judgment dated 3.9.1999 dismissed the case holding that in view of the principle laid down by the Hon'ble Supreme Court of India in 1999(1) SCALE 138, the Tribunal cannot interfere with the issue of the quantum of penalty. The applicant in OA 549/07 approached the Hon'ble High Court of A.P. against the said order of the Tribunal by filing W.P. No. 26770/99. The applicant in other OA 622/2007 has also filed similar WP bearing no. 2678/99. The Hon'ble High Court of AP took up the writ petition bearing No. 26770/1999 filed by the applicant in OA 549/07 along with writ petition No. 26784/1999 filed by the applicant in OA 622/2007 and allowed the writ petitions by common order dated 22-06-2001with the following order :
"We, therefore, allow these writ petitions, set aside the order passed by the learned Tribunal, as also the order dated 25.6.1998 and direct the appellate authority to consider the matter afresh in the light of the observations made hereinabove. The appellate authority may also consider the matter, having regard to the various decisions of this Court in DISTT. MANAGER, APSRTC, VIJAYAWADA v. K. SIVAJI, M.R. RAO v. GOVT. OF AP., HYD., T.J.(P) LTD. v. AUTHORITY UNDER PAYMENT OF WAGES ACT 7 ANR., S.B.T.P.O. ASSOC. v. P.O. INDL TRIBUNAL and dispose of the representation filed by the petitioner within one month from the date of communication of the order. No order as to costs."
6. In the above two writ petitions, the Hon'ble High court has held that the order of the appellate authority is not a speaking order. Both the applicants approached this Tribunal once again by filing separate OAs viz. OA 1483/2001 and OA 1480/2001 and the Tribunal by common order dated 19-01-2004 allowed the two applications with the following order:
"Both these OAs are accordingly allowed. The impugned orders are hereby set aside. The 2nd respondent is directed to consider the matter afresh and to comply with the directions issued by the Hon'ble High Court of Andhra Pradesh in W.P.Nos. 26770 and 26784/1999 in its judgment dated 22.6.2001 and pass fresh orders. There shall be compliance with this order within a period of one month from the date of receipt of a copy of this order. In the circumstances, we direct the parties to bear their respective costs."
7. It is the contention of the applicants that pursuant to the order of the Tribunal, orders were passed by the respondents on 13.04.2004 once again rejecting the request of the applicant to moderate the penalty. Pursuant to the order of the Tribunal in the above OAs the Chief Engineer passed the following order dated 26-04-2004, copy of which is enclosed at page 73 of the OA:
"Removal from service which shall not be a disqualification for future employment under the Government."
8. The applicants again approached this Tribunal by filing separate OAs viz. OA 623/04 and 550/04. The Tribunal in its common order dated 06.03.07 allowed the two applications with the following order:
"In view of the above, we quash and set aside the impugned orders dated 13.04.2004 and 26.04.2004 and direct the 2nd respondent to re-consider the matter afresh and to pass appropriate order within a period of two months from the date of communication of this order. The respondents shall pay cost of Rs.1000/- to each of the applicants within one month."
9. It is contended by the applicants that the 2nd respondent once again rejected the claim of the applicants by confirming the punishment for the very same set of reasons which were earlier considered by the Tribunal. The order dated 30-4-2007 is enclosed as Annexure-XXI at page 81-85 of the OA. Questioning the said order of the 2nd respondent dated 30.4.2007 the applicants have approached this Tribunal seeking for the following relief:
To call for the records relating to and connected with order No. 10548/AF/26/183/EIC dated 30.4.2007 of the second respondent and to quash or set aside the same with consequential direction to the respondents to reinstate the applicants to duty with all the consequential benefits by allowing the OA with exemplary costs.
10. In view of the above facts and circumstances, it is seen that after the orders passed by the Tribunal in OA NO. 945/1998 and OA No. 622/2007 were set aside by the Hon'ble High Court of A.P. in its common order dated 22-6-2001 (in W.P. No. 26770/99 and 26784/99), the appellate authority reconsidered its order but without discussing the judgments and the aspects as directed by the Hon'ble High Court and this Tribunal, in OA 623/04 and 550/04 in its common order dated 06.03.2007 quashed the order of the appellate authority dated 13.4.04 and 26.4.04 with a direction on the 2nd respondent to pass appropriate order. In this context it is required to go through the relevant parts of the common order of the Hon'ble High Court dated 22-6-2001 (supra) which read as under:
"The learned Tribunal, relying on a decision of the Apex Court in U.P. STATE ROAD TRANSPORT CORPORATION & ORS. v. A.K. PARUL (1999(1)SCALE 138) inter alia held that the Court or the Tribunal has no jurisdiction to interfere with the quantum of punishment. The question, which has been raised in this application is a vexed one.
It is true that the doctrine proportionality, keeping in view the several decisions of the Apex Court and in particular OM KUMAR AND OTHERS v. UNION OF INDIA (JT 2000 (SUPP3)SC 92) must be considered in the light of the principles of Wednesbury unreasonableness, as evolved in ASSOCIATED PROVINCIAL PICTURE HOUSES v. WEDNESBURY CORPORATION (1948)1 KB 223). But, it appears that in the instant case the learned Tribunal felt on the earlier occasion that having regard to the facts and circumstances of the case, the punishment meted out to the petitioner was so disproportionate so as to shock the conscience of the Court. In OM KUMAR's case (supra) the Apex Court made a distinction between primary review and secondary review. While considering the administrative action the Court may invoke the underlying principles adumbrated in Article 14 of the Constitution of India. If the same suffers from the eye of unreasonableness, in the light of the decision of the Apex Court in E.P. ROYAPPA v. STATE OF TAMILNADU (AIR 1974 SC 555).
Another important aspect which requires consideration from another angle is if a misrepresentation is made for the purpose of obtaining an appointment, the same would constitute a serious misconduct, but if a person has produced something which was not necessary to be produced and/or the documents so produced were wholly irrelevant for the purpose of obtaining the appointment, the same may be considered in a different perspective.
The order passed by the appellate authority dated 25.6.1998, which was impugned before the learned Tribunal, is not a speaking order. In the said order, the appellate authority has not considered the aforementioned aspect of the matter. We are, therefore, of the opinion that the learned Tribunal ought not have dismissed the Original Application filed by the petitioners herein.
We, therefore, allow these writ petitions, set aside the order passed by the learned Tribunal, as also the order dated 25.6.1998 and direct the appellate authority to consider the matter afresh in the light of the observations made herein above. The appellate authority may also consider the matter, having regard to the various decisions of this Court in DISTT. MANAGER, APSRTC, VIJAYAWADA v. K. SIVAJI, M.R.RAO v. GOVT. OF A.P. HYD, T.J.(P) LTD. v AUTHORITY UNDER PAYMENT OF WAGES ACT & ANR, S.B.T.PO. ASSOC v P.O., INDL. TRIBUNAL and dispose of the representation filed by the petitioner within one month from the date of communication of the order. No order as to costs."
11. The present OAs are filed questioning the order of the appellate authority dated 30.4.2007 (Page 81-85 in OA 549/07). After hearing the learned counsel for the parties at length and after going through th order of the Hon'ble High Court (supra) and the impugned orders here we find that the appellate authority has passed an elaborate order where it has held that the judgments referred by the Hon'ble High Court are not applicable as the facts are not similar to the issue involved in the present case. The other aspect as mentioned by the Hon'ble High Court as reproduced above has not been categorically dealt with in this order. However, we are of the view that since this time, the appellate authority has passed its order with its findings, whether that order is appropriate order in terms of the order of the Hon'ble High Court or in other words whether the appellate authority is correct in holding that the judgment referred to by the Hon'ble High Court are not applicable and has in any way considered the other aspect as directed by the Hon'ble High Court (supra), cannot be decided by the Tribunal. The order passed by the Appellate Authority this time, in our view, cannot be interfered by the Tribunal. In this context, it will not be out of place to refer to the decisions of Hon'ble Supreme Court in the case of SANKAR DEB ACHARYA AND OTHERS VS. BISWANATH CHAKRABORTY AND OTHERS reported in (2007)2 SCC 309 wherein the Apex Court has inter alia said that order passed by the Government pursuant to the order of High Court should not be interfered by the Tribunal.
"17. We are surprised to notice that aggrieved party (the respondents herein) again approached the Tribunal in OA No. 636 of 2001 and the Tribunal by its order dated 10.4.2002 set aside the government order dated 28-3-2001 which was passed, as already noticed, pursuant to the writ of mandamus issued by the Division Bench of the High Court. The Tribunal was of the view that affected persons have not been heard and the matter be remanded back to the Government for fresh consideration. We are unable to subscribe to the view expressed by the Tribunal. Firstly, since the order of 28-3-2001 was issued pursuant to a mandamus issued by the Division Bench of the High Court, the Tribunal should not have interfered. Secondly, before the High Court the interest of the present respondents were adequately represented and there was no question of passing an order without hearing the parties who had been adversely affected."
12. In view of the facts and circumstances and legal position we hold that the orders impugned in this two OAs cannot be interfered by the Tribunal. Registry is, therefore, directed to return the papers to the applicants to approach the appropriate forum if so advised.
13. The OAs are ordered accordingly with no order as to costs.
(R.SANTHANAM) (BHARATI RAY)
MEMBER(A) MEMBER(J)