Central Administrative Tribunal - Allahabad
Vijay Pal Singh Son Of Sri Kedar Singh Ex ... vs Union Of India on 31 March, 2011
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL,
ALLAHABAD BENCH ALLAHABAD
(THIS THE 31st DAY OF March 2011)
Original Application No. 1316 of 2006
(U/S 19, Administrative Tribunal Act, 1985)
Honble Dr. K.B.S. Rajan, Member (J)
Honble Mr. S.N. Suhkla, Member (A)
Vijay Pal Singh Son of Sri Kedar Singh Ex Mazdoor, T.No.3608, C.O.D. Agra R/o Village Kuankhera, P.O. Kalakheria, District Agra. (U.P.)
.. Applicant
By Advocates : Shri S.K. Om
Shri A.K. Jaiswal
Shri L.M. Singh
V E R S U S
1. Union of India, through the Secretary Ministry of Defence, New Delhi.
2. Director General of Ordnance Services, Master General of Ordnance Branch Army Headquarters, New Delhi.
3. Commandant, Central Ordnance Deport Agra Cantt. Agra 292009.
.... Respondents
By Advocates : Shri R.K. Srivastava
O R D E R
(Delivered by Honble Dr. K.B.S. Rajan, Member-Judicial) When this case was taken up for hearing, request of counsel for the parties to file written submissions was allowed. However, written submissions were filed by the respondents but not on the applicants side. On the basis of pleadings available the case is being decided.
2. The version of the Applicant in regard to this petition is as under:-
(a) The Applicant is challenging Annexure A-1 & A-2 order dated 02.05.2005 passed by respondent No.3 as well as appellate order dated 11.11.2005 passed by the respondent No. 2.
(b) Applicant was served with a copy of charge sheet dated 22.05.2004 vide Annexure A-3. The charges are as under:-
vkjksi dk vuqPNsn-A ;g fd Jh fot; iky] lh0vks0Mh0 vkxjk ds QksVZ lc fMiks esa ebZ 2004 ds nfeZ;ku tc etnwj ds in ij dk;Zjr Fkk rc mlus QksVZ lc fMiks ds izHkkjh vf/kdkjh <twi lSU; vQlj= lqcsnkj ls nqO;Zgkj fd;kA ftlesa fd] fn0 04-05-2004 dks dfFkr Jh fot; iky us viuh M;wVh ij ysV vkus ds dkj.k ysV ekdZ ds lEcU/k esa mxz gksdj <mRrsftr gksdj= vU; deZpkfj;ksa dh mifLFkfr esa lwcsnkj egsUnz flag <izHkkjh QksVZ lc fMiks= ls EWph vkokt esa fpYYkkrs gq, ,oa vfkVrk ls cksyrs gq, <Insubordination=nqO;Zogkj fd;kA Ektnwj Jh fot; iky us vius mijksDr nqO;Zogkj ls lh0lh0,l0 <dUMDV= fu;ekoyh 1964 ds fu;e&3<aaaaaaAAA= ds mYka?ku esa ,d deZpkjh gksus dk vkpj.k iznfZkZr fd;kA vkjksi dk vuqPNsn-AA ;g fd mijksDr vof/k esa mijksDr dk;kZy; esa tc dfFkr Jh fot; iky dk;Zjr Fkk rc mlus fn0 04-05-2004 dks tw0 lSU; vf/kdkjh lwcsnkj egsUnz flag <izHkkjh vkxjk QksVZ lc fMiks= dks] ogkW ij vU; deZpkfj;ksa dh mifLFkfr esa /kedh nsrs gq, mUgs <lwcsnkj egsUnz flag= xsV ds ckgj xksyh ekjus dks dgdj viuh t?kU; bPNk <bjknk= tkfgj djds ?kksj nqjkpj.k izfnZkr fd;kA Etnwj Jh fot; iky us vius mijksDr nqjkpkj.k ls lh0lh0,l0 <dUMDV= fu;ekoyh&1964 ds fu;e&3<AAA= ds mYka?kau esa ,d vuqfpr deZpkjh dk vkpj.k iznfkZr fd;kA vkjksi dk vuqPNsn-AAA ;g fd mijksDr vof/k esa mijksDr dk;kZy; esa tc dfFkr Jh fot; iky dk;Zjr Fkk rc mlus fn0 4-5-2004 dks tw0 lSuk vf/kdkjh lwcsnkj esgUnz flag <izHkkjh QksVZ lc fMiks= dks] vU; deZpkfj;ksa dh mifLFkfr esa mRrsftr Loj esa vHkzn Hkkkk <unparliamentary language=] xkyh xykSt Hkkkk dk iz;ksx djds nqjkpkj iznfkZr fd;k ,oa lh0lh0,l0 <dUMDV= fu;ekoyh 1964 ds fu;e&3<AAA= dk mY?kau fd;kA
(c) An Inquiry Officer was appointed to enquire the charges framed against the applicant. Inquiry Officer submitted inquiry report dated 05.11.2004 (Annexure A-7), a copy of which was served on the delinquent, who has submitted representation dated 23.12.2004 (Annexure A-9). The Disciplinary Authority, after having considered the said representation, remitted the case to the enquiry officer to record the evidences on the points mentioned therein. Inquiry Officer again submitted his report dated 12.02.2005 relating to the additional inquiry and a copy of additional inquiry report dated 12.02.2005 was delivered to the delinquent official and the delinquent official has submitted representation dated 22.02.2005 against the additional inquiry report. The disciplinary authority after having examined/considered the delinquent officials representation dated 26.02.2005, inquiry report dated 05.11.2004 in conjunction with additional inquiry report dated 12.02.2005, relevant records and factual position explained above, ordered T No.3608 Mazdoor Shri Vijay Pal be removed from service which shall not be a disqualification for further employment under the government and will be SOS from COD Agra/Army Ordnance Crops from the date this order is served on the said delinquent official.
(d) The applicant filed an appeal raising various legal points. This appeal was considered in detailed vide Appellate Order dated 11.11.2005 (Annexure A-2) and the Appellate authority upheld the order of the Disciplinary authority for removal from service.
3. The applicant has filed this O.A. challenging the validity of the penalty order and Appellate order. The following are the main grounds:-
(i) On 04.05.2004 mental status of the applicant was not good.
(ii) On 04.05.2004 he was forcibly marked 10 minutes late where as he was late only about 2 minutes which is normal, but not habitual.
(iii) The learned enquiry officer conducted the enquiry under the pressure of his superiors as concluded the same in very hurry manner even without proving full opportunity of hearing to the applicant.
(iv) There were sufficient evidences available on the records, which show that the behaviour of Sub Mahendra Singh is too abusive towards his subordinate staff and alleged charge of using unparliamentary language by the applicant neither intentional nor voluntary.
4. Respondents have contested the O.A. According to them, the enquiry was conducted in accordance with the prescribed rules and the penalty was just and fair, based on the conclusion of the enquiry.
5. The applicant has filed Rejoinder Affidavit, reiterating his stand as contained in the Original Application. He has stated that he was facing some domestic problem due to which he was not in normal condition. He has also contended that the denying documents by the Disciplinary Authority/Enquiry officer, submitted by the applicant were neither just nor proper. The punishment awarded to the applicant is too harsh and does not commensurate with the charges leveled against to the applicant.
6. In the written submission, the respondents have narrated the sequence of events and stated that the procedure has been followed strictly in this case and the application is dismissed.
7. The pleadings were considered along with written submission. The incident took place on 04-05-2004. The applicant seems to have been under some medical treatment since last week of April 2004 but he was under treatment of Dimag Hospital from 14th June 2004. His behaviour was stated to have been abnormal from end April 2004 itself; became more violent from 7th May 2004. Certificate dated 04-07-2004 filed by the applicant refers. This point has been considered but rejected by the disciplinary authority vide para o(ii) of his order dated 2nd May 2005. From para 14 of Appeal dated 26-04-2005 (annexure A-15), the above fact of the applicant reportedly not being in normal state of mind had also been spelt out by Major Bohra in his statement. If so the aspect of the applicant not being in a balanced state of mind ought to have been considered more pragmatically. For, at the time when the brother of the applicant informed Major (later on Lt. Col) Bohra, the alleged misconduct did not take place; hence, the information furnished to Lt. Col. Bohra cannot be one of pre-planned to press the same into service as the defence at the time of inquiry. And no one would speak about ones own brother about the mental disturbance. Pragmatism should also weigh the disciplinary authority in coming to a conclusion. The appellate authority too has no doubt considered this and held that as per Lt.Col Bohra, the applicant was looking normal. The erratic behaviour of the applicant need not necessarily be all through and would have sprung up on provocation. But this point by itself is not the deciding factor in this case whether the proceedings are vitiated but would serve as a cumulative character. The legal issues however, are spinal for decision in this case.
8. In so far as the area within which judicial intervention could be permitted is as to the following:-
(i) Whether, there is any legal flaw in the decision making process and if so, whether the same warrants judicial interference.
(ii) Whether, the penalty imposed is commensurate with the gravity of misconduct or is shockingly disproportionate.
9. In so far as the first question is concerned, law has been crystallized as to the procedure to be adopted by the authorities.
(a) The enquiries must be conducted bona fide and care must be taken to see that the enquiries do not become empty formalities. (State of Uttaranchal vs Kharak Singh (2008) 8 SCC 236) Inquiry to be strictly in accordance with rules, charges should be specific and definite giving details of the incident which formed the basis of charges has to be conducted fairly, objectively and not subjectively - Union of India and Others vs Gyan Chand Chattar (2009) 12 SCC 78
(b) Ample opportunities have been given in order to enable to effectively participate in the proceedings; Failure to avail the opportunity by the charged officer would not mean that principles of natural justice have been violated. - Union of India and others vs G. Annadurai CA 2829 of 2009 decided on April 27, 2009.
(c) An inquiry officer acting in a quasi-judicial authority is in the position of an independent adjudicator. He is not supposed to be a representative of the department/disciplinary authority/Government. His function is to examine the evidence presented by the Department, even in the absence of the delinquent official to see as to whether the unrebutted evidence is sufficient to hold that the charges are proved. .... State of U.P. v. Saroj Kumar Sinha,(2010) 2 SCC 772 :
(d) And no one facing a departmental enquiry can effectively meet the charges unless the copies of the relevant statements and documents to be used against him are made available to him. In the absence of such copies, how can the employee concerned prepare his defence, cross-examine the witnesses, and point out the inconsistencies with a view to show that the allegations are incredible? (Kashinath Dikshita vs Union of India (1986) 3 SCC 229)
(e) A document not confronted to the delinquent cannot be relied upon for establishing the fact that the delinquent is guilty of a misconduct (see Nicks (India) Tool vs Ram Surat, (2004) 8 SCC 222 at page 227.)
(f) Summoning a witness by the delinquent officer should be considered by the enquiry officer. It was obligatory on the part of the enquiry officer to pass an order in the said application. He could not refuse to consider the same. It is not for the Railway Administration to contend that it is for them to consider as to whether any witness should be examined by it or not. It was for the enquiry officer to take a decision thereupon. A disciplinary proceeding must be fairly conducted. An enquiry officer is a quasi-judicial authority. He, therefore, must perform his functions fairly and reasonably which is even otherwise the requirement of the principles of natural justice. Union of India v. Prakash Kumar Tandon,(2009) 2 SCC 541 :
(g) The mandatory requirement of the inquiry officer asking the questions on the circumstances appearing against the charged officer after the prosecution closes its evidence when the charged officer himself does not enter the witness box, vide Rule 14(18) of the CCS(CC&A) rules, 1965 and corresponding provisions in the Railway Servants (Department and Appeal) Rules, has to be properly should be fulfilled to in strict sense. ( Moni Shankar v. Union of India,(2008) 3 SCC 484, wherein the Apex Court has held -
20. The enquiry officer had put the following questions to the appellant:
Having heard all the PWs, please state if you plead guilty? Please state if you require any additional documents/witness in your defence at this stage? Do you wish to submit your oral defence or written defence brief? Are you satisfied with the enquiry proceedings and can I conclude the enquiry?
21. Such a question does not comply with Rule 9(21) of the Rules. What were the circumstances appearing against the appellant had not been disclosed.)
(h) Principles of natural justice cannot be put into a straitjacket formula and its observance would depend upon the fact situation of each case. Therefore, the application of the principles of natural justice has to be understood with reference to the relevant facts and circumstances of a particular case. Union of India v. Bishamber Das Dogra,(2009) 13 SCC 102
(i) Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. The enquiry officer cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot enquire into the allegations with which the delinquent officer had not been charged with. (M.V. Bijlani vs Union of India (2006) 5 SCC 88)
(j) Inquiry Report to be sent to the delinquent beforehand ( ECIL v. B. Karunakar, (1993) 4 SCC 727)
(k) The Disciplinary authority shall record reasons while passing an order adversely affecting an individual: ( G. Vallikumari v. Andhra Education Society,(2010) 2 SCC 497) :
(l) The appellate authority shall apply his mind to the entire case and ascertain to consider ( 1 ) whether the procedure laid down in the rules has been complied with; and if not, whether such non-compliance has resulted in violation of any of the provisions of the Constitution of India or in failure of justice : ( 2 ) whether the findings of the disciplinary authority are warranted by the evidence on record; and ( 3 ) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc. the penalty, or remit back the case to the authority which imposed the same. Ram Chander v. Union of India, (1986) 3 SCC 103 , Narinder Mohan Arya v. United India Insurance Co. Ltd.,(2006) 4 SCC 713 Apparel Export Promotion Council v. A.K. Chopra
(m) Judicial review is a review of the manner in which the decision is made. to ensure that the individual receives fair treatment 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 (B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749) In Union of India v. G. Ganayutham, (1997) 7 SCC 463 the Apex court has held as under:-
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.
(n) Judicial intervention on the quantum of penalty imposed is minimum. Unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the court/tribunal, there is no scope for interference. Further, to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In the normal course if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the disciplinary authority or the Appellate Authority to reconsider the penalty imposed. (Union of India v. K.G. Soni, (2006) 6 SCC 794 )
10. The above legal position is to be telescoped upon the facts of the instant case. The charges are as under:-
(a) The Article of charge and imputation of charge :
(i) Article of charge I On 04 May 04 at AFSD Agra Maz Vijai Pal T. no 3608 was marked late due to late arrival. Irritated by late marking Maz Vijai Pal shouted at Sub Mahinder Singh thus committed an act of insubordination.
Article of Charge II: On 04 May 04 at AFSD Agra T. No.3608 Maz Vijai Pal threatened to shoot & kill Sub Mahender Singh JCO I/C outside the gate thus expressing his ill intentions against his superior officer violating CCS Conduct Rules 1964.
Article of Charge III. On 04 May 04 T. No.3608 Maz Vijai Pal at AFSD Agra when marked late at 0850h argued with Sub Mahendra Singh JCO I/C and used unparliamentarily language thus violating CCS Conduct Rules 1964 Rule 3(iii).
(ii) Imputation of Charge I Irritated by the late marking T. No.3608 Maz Vijai Pal instead of going to his place of work went to Sub Mahinder Singh and started shouting in loud voice at JCO I/C and said in a threatening tone that I have come at 084h but you people have advanced the clock timing by 05 minutes thus created a scene in front of all the employees of AFSD Agra.
(ii) Imputation of Charge II: T. No.3608 Maz Vijai Pal reported late for duty on 04 May 04 at 0850h and was marked late by orderly NCO. Irritated by the late marking he want to Sub Mahender Singh JCO I/C AFSD Agra and started arguing shouting aloud and threatened to shoot and kill sub Mahender Singh outside the gate and nobody can touch Maz Vijai Pal. Hindi version of imputation is given in the charge sheet.
Imputations of Charge III. On 04 May 04 T. No.3608 Maz Vijai Pal has reported late for duty at AFSD Agra at 0850h and was marked late by orderly NCO. Irritated by his late marking he went to Sub Mahendra Singh JCO I/C AFSD Agra argued with him and used abusive language thus violated rule 3(iii) of CCS Conduct Rules 1964.
(b) Assessment of Charges
(i) Assessment of Charge I According to the statements of imputation of misconduct or misbehaviour the case has been examined with reference to the documentary and oral evidences produced by the Presenting Offr and Delinquent Offcial/Defence Asst. Delinquent Official pleaded guilty, however, he was dismayed at his erratic behaviour. The act of insubordination has been corroborated by prosecution Witnesses and Defence witness No.5 T. No. Maz Narender Kumar. I found that no defence witness except D.W.I T. No.912 Maz BC Tiwari is eye witness and he has become hostile during cross examination. In the light of evidence available the charge No.1 against T. No.3608 Maz Vijai Pal is sustained.
(ii) Assessment of Charge II: The chare has been examined in the light of documentary and oral evidence produced by Presenting Offr and Delinquent Official/Deence Asst. Prosecution witness No.2 has confirmed during the course of cross examination by D.A. that Maz Mijai Pal has threatened and abused Sub Mahender Singh and NK Madan Lal of DSC (P.W. No.2) was an eye witness to the incident. Neither prosecution witnesses nor defence witnesses have refuted that Maz Vijai Pal has threatened to kill Sub Mahender Singh out side the gate however Defence witnesses have tried to twist the actual statement of Delinquent Official. Defence witnesses thus have stated that such kind of hearted abusive arguments could have led to a shooting incident, had it been in civil. In view of the fore-going charge no.2 is sustained against T. No.3608 Maz Vijai Pal.
(iii) Assessment of Charge III. All the prosecution witnesses confirmed the incident of 04 May 04. Prosecution witnesses have confirmed the fact that T. No. 3608 Maz Vijai Pal while arguing with Sub Mahendra Singh has used abusive language and threatened Sub Mahendra Singh. D.W. No.1 T.No.912 Maz BC Tiwari was also late that day but he did not support the story of Delinquent Official. In view of the deposition of PWs and DWs. cross examination and further re-examination by Inquiry Officer charge No.3 is sustained against the delinquent official.
11. The inquiry officers report dated 12 Feb 2005 read with the earlier report of 05-11-2004 gives out the clear picture that the inquiry has been conducted properly. In fact, whatever was the lacuna in the first inquiry report was rectified by the disciplinary authority when he had directed further inquiry on receipt of the representation against the inquiry report. Thus, principles of natural justice have been fully complied with and we are not able to discern any legal lacuna in the decision making process.
12. In so far as the quantum of penalty is concerned, the Apex court has held in a number of decisions that unless the penalty is shockingly disproportionate, judicial intervention is not justified. For using abusive case, there may be case where the employer would have dismissed the employee and the same would have been upheld by the Apex Court, vide Mahindra and Mahindra Ltd. v. N.B. Narawade,(2005) 3 SCC 134 . Therein, the use of abusive words was at a time when there was no provocation and that it was not the first time. The respondent therein even went to the extent of hitting some one with galvanized pipe. In the instant case, there has been no precedence of the applicant having committed such misconduct in the past. His brother had informed the officer much earlier as to the mental state and the hospital certificate confirms His mental state on the date of the alleged incident would go to prove that even with the minor provocation; he would have lost his balance. The applicant is in his late twenties and he is in the threshold of his official career. Though removal from service would not be a bar to future appointment, no other employer would prefer to have the services of the applicant when one is removed from service. Perhaps if the appellate authority considers as to the quantum of penalty and arrive at a judicious conclusion, the same would meet the ends of justice.
13. In view of the above, the OA is disposed of with a direction to the appellate authority to consider reduction of penalty keeping in view the physical/mental condition of the applicant at the material point of time and communicate the same. This order be complied with, within a period of three months from the date of receipt of a copy of this order.
(S.N. Shukla) (Dr. K.B.S. Rajan)
Member-A Member-J
Sushil
??
??
??
??
15/15