Central Administrative Tribunal - Lucknow
Banwari Lal vs Union Of India on 7 May, 2024
CAT,Lucknow Bench OA No. 332/00404 of 2012 BanwariLal Vs. U.O.I. &Ors.
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH LUCKNOW
Original Application No.332/00404/2012
Order dated: This 7st day of May, 2024
Hon'ble Mr. Justice Anil Kumar Ojha, Member-Judicial
Hon'ble Mr. Pankaj Kumar, Member-Administrative
Banwari Lal, aged about 56 years, son of Late Shri Hem Nath, address
Phattepur, Post Banjamau, P.S. Machrehta, Tehsil Mishrit, District
Sitapur.
.....Applicant
By Advocate: Shri Praveen Kumar
VERSUS
1. The General Manager, Northern Railway, Baroda House, New Delhi.
2. The Chief Engineer, Bridge Line, New Delhi
3. The Deputy Chief Engineer, Bridge Line, Tilak Bridge, New Delhi.
4. The Executive Engineer/Bridge, Northern Railway, Moradabad.
.....Respondents
By Advocate: Smt. Prayagmati Gupta
ORDER (ORAL)
Per Hon'ble Mr.Pankaj Kumar, Member-Administrative In this case relating to punishment, the applicant seeks the following reliefs:
1. To quash the impugned removal order dated 30.09.2007 and Appellate Order dated 28.03.2008 and Revision Order dated 07.06.2012 contained as Annexure No. A-1, A-2, and A-2A to this OA with all consequential benefits.
2. To reinstate the applicant in service with continuity in service, seniority, promotion and all other attending benefits viz. monetary benefits etc.
3. Any other relief, which this Hon'ble Tribunal may deem fit, just and proper under the circumstances of the case, may also be passed.
4. Cost of the present case.
Page 1 of 9 CAT,Lucknow Bench OA No. 332/00404 of 2012 BanwariLal Vs. U.O.I. &Ors.
2. The applicant was issued a charge sheet dated 29.07.2006 for unauthorized absence from 25.07.2004 to 04.09.2005. In the enquiry, the charge was found proved. The disciplinary authority, after issuing the show cause notice, imposed a penalty of removal from service on the applicant vide order dated 30.09.2007 which was upheld by the appellate authority vide order dated 28.03.2008 and by the revising authority vide order dated 07.06.2012. Aggrieved, the applicant has preferred this OA.
3.1 The applicant contends that he was compelled to seek extension of leave on account of deterioration of health of his son due to illness who died eventually, but the respondents have failed to consider the reasons shown by the applicant.
3.2 It is further contended that the charge was confined to the period from 25.07.2004 to 04.09.2005, but the enquiry officer has taken into consideration the period beyond the charge sheet, thus vitiating the enquiry.
4.1 The respondents state that the enquiry officer afforded 8 opportunities to the applicant, but the applicant attended the enquiry only on 26.10.2006. The son of the applicant expired on 21.08.2005 whereas the employee was on unauthorized absence from 25.07.2004 to 04.09.2005.
4.2 The applicant was in the habit of being absent unauthorizedly as he remained absent for 1,749 days during the period from the year 1988 to 2006.
5. We have heard both the parties.
6.1 The principles governing judicial review of departmental proceedings have been summarized by Hon'ble Supreme Court in Page 2 of 9 CAT,Lucknow Bench OA No. 332/00404 of 2012 BanwariLal Vs. U.O.I. &Ors. Union of India vs SubrataNath2022 SCC Online SC 1617 in following terms:
"15. It is well settled that courts ought to refrain from interfering with findings of facts recorded in a departmental inquiry except in circumstances where such findings are patently perverse or grossly incompatible with the evidence on record, based on no evidence. However, if principles of natural justice have been violated or the statutory regulations have not been adhered to or there are malafides attributable to the Disciplinary Authority, then the courts can certainly interfere.
16. In the above context, following are the observations made by a three- Judge Bench of this Court in B.C. Chaturvedi (supra):
"12. 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 re-appreciate 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.
13. 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. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant.
Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
xxxx Page 3 of 9 CAT,Lucknow Bench OA No. 332/00404 of 2012 BanwariLal Vs. U.O.I. &Ors.
18. A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact- finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They 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."
17. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya, a two Judge Bench of this Court held as below:
"7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations."
18. In Chairman & Managing Director, V.S.P. and Others v. Goparaju Sri Prabhakara Hari Babu, a two Judge Bench of this Court referred to several precedents on the Doctrine of Proportionality of the order of punishment passed by the Disciplinary Authority and held that :
"21. Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved."
19. Laying down the broad parameters within which the High Court ought to exercise its powers under Article 226/227 of the Constitution of India and matters relating to disciplinary proceedings, a two Judge Bench of this Court in Union of India and Others v. P. Gunasekaran held thus :
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the Page 4 of 9 CAT,Lucknow Bench OA No. 332/00404 of 2012 BanwariLal Vs. U.O.I. &Ors.
disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience."
20. In Union of India and Others v. Ex. Constable Ram Karan, a two Judge Bench of this Court made the following pertinent observations :
"23. The well-ingrained principle of law is that it is the disciplinary authority, or the appellate authority in appeal, which is to decide the nature of punishment to be given to the delinquent employee. Keeping in view the seriousness of the misconduct committed by such an employee, it is not open for the courts to assume and usurp the function of the disciplinary authority.
24. Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience Page 5 of 9 CAT,Lucknow Bench OA No. 332/00404 of 2012 BanwariLal Vs. U.O.I. &Ors.
of the court, normally the disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The scope of judicial review on the quantum of punishment is available but with a limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the courts would frown upon. Even in such a case, after setting aside the penalty order, it is to be left to the disciplinary/appellate authority to take a call and it is not for the court to substitute its decision by prescribing the quantum of punishment. However, it is only in rare and exceptional cases where the court might to shorten the litigation may think of substituting its own view as to the quantum of punishment in place of punishment awarded by the competent authority that too after assigning cogent reasons."
21. A Constitution Bench of this Court in State of Orissa and Others (supra) held that if the order of dismissal is based on findings that establish the prima facie guilt of great delinquency of the respondent, then the High Court cannot direct reconsideration of the punishment imposed. Once the gravity of the misdemeanour is established and the inquiry conducted is found to be consistent with the prescribed rules and reasonable opportunity contemplated under the rules, has been afforded to the delinquent employee, then the punishment imposed is not open to judicial review by the Court. As long as there was some evidence to arrive at a conclusion that the Disciplinary Authority did, such an order becomes unassailable and the High Court ought to forebear from interfering. The above view has been expressed in Union of India v. Sardar Bahadur.
22. To sum up the legal position, being fact finding authorities, both the Disciplinary Authority and the Appellate Authority are vested with the exclusive power to examine the evidence forming part of the inquiry report. On finding the evidence to be adequate and reliable during the departmental inquiry, the Disciplinary Authority has the discretion to impose appropriate punishment on the delinquent employee keeping in mind the gravity of the misconduct. However, in exercise of powers of judicial review, the High Court or for that matter, the Tribunal cannot ordinarily reappreciate the evidence to arrive at its own conclusion in respect of the penalty imposed unless and until the punishment imposed is so disproportionate to the offence that it would shock the conscience of the High Court/Tribunal or is found to be flawed for other reasons, as enumerated in P. Gunasekaran (supra). If the punishment imposed on the delinquent employee is such that shocks the conscience of the High Court or the Tribunal, then the Disciplinary/Appellate Authority may be called upon to re-consider the penalty imposed. Only in exceptional circumstances, which need to be mentioned, should the High Court/Tribunal decide to impose appropriate punishment by itself, on offering cogent reasons therefor."
(emphasis supplied) Our examination of the case at hand in the following paragraphs would be confined to the parameters for judicial review set out above. Page 6 of 9 CAT,Lucknow Bench OA No. 332/00404 of 2012 BanwariLal Vs. U.O.I. &Ors. 6.2.1 A perusal of the charge sheet shows that thecharge against the applicant was for unauthorized absence from duty from 25.07.2004 to 04.09.2005. It was also mentioned in the charge sheet that the applicant is a habitual absentee. We note that no details of past absence were provided in the charge sheet. In the enquiry, the enquiry officer took note of a letter dated 30.12.2006 issued by the respondents informing that the applicant has been absent for 1,749 days during his service period from November 1988 to 31.12.2006. Further, the enquiry officer noted that the applicant remained absent unauthorizedly in two spells even after promising that he would not do so; the first spell of 41 days was from 23.11.2005 to 02.01.2006 and the second spell of 32 days was from 22.08.2006 to 22.09.2006. Considering the aforementioned material, the enquiry officer concluded that the applicant is a habitual absentee. By considering the applicant's alleged absence from duty without authorization before and after the specific period (i.e., 25.07.2004 to 04.09.2005) mentioned in the charge sheet, the enquiry officer has travelled beyond the scope of the charge sheet. 6.2.2 In the order of disciplinary authority dated 30.09.2007, we again find a mention of the absence of 1,749 days for the period 1988 to 2006 which was not specified in the charge sheet, beyond the scope of the disciplinary proceedings.
6.2.3 The appellate authority rejected the applicant's appeal vide order dated 28.03.2008 with the following brief remarks:
"While going through your appeal, enquiry report & relevant papers placed on file, it is felt that punishment imposed by Disciplinary Authority is proper & justified as such no relaxation can be given in this case."
6.2.4 The revising authority also rejected the applicant's revision petition in a similar laconic fashion:
"After considering your revision appeal, enquiry report and relevant papers placed on file, the punishment of 'Removal from service' imposed by Page 7 of 9 CAT,Lucknow Bench OA No. 332/00404 of 2012 BanwariLal Vs. U.O.I. &Ors.
Disciplinary Authority and duly upheld by Appellate Authority is proper &justified. Hence, your revision appeal does not merit any further consideration and the penalty imposed upon you stands."
6.2.5 It is evident that the enquiry officer and the disciplinary authority took into account not only the period of absence mentioned in the charge sheet (from 25.07.2004 to 04.09.2005), but also the period of absence from 1988 to 2006 which was not specified in the charge sheet. In doing so, in our opinion, they disabled themselves from reaching a fair conclusionin regard to the conduct of the applicant. This deficiency went unaddressed in the orders passed by the appellate authority and the revising authority.
6.3 Another troubling aspect of the case is that the applicant gave a statement in the enquiry on 06.02.2007 that he had gone home after taking leave for 23-24.07.2004, but could not return due to deterioration of his son's health and that he intimated this fact by post on 25.07.2004 and again informed by post on 09.08.2004 as his son was in serious condition. It is not disputed that the applicant's son passed away on 21.08.2005. The sickness of the applicant's son and his death took place during the period of unauthorized absence from 25.07.2004 to 04.09.2005. Yet we find no mention of this consideration in the findings of the enquiry officer as well as the order passed by the disciplinary authority. The orders passed by the appellate authority and the revising authority also do not address this aspect. A sensitive and humane approach would have required at least an acknowledgment of the personal tragedy suffered by the applicant. We find to our dismay that such consideration was given short shrift by the respondents. Consequently, the punishment imposed on the applicant, being grossly disproportionate in our opinion, has shocked our conscience. 6.4 During the course of hearing, learned counsel for the respondents argued that the matter may not be remanded to the Page 8 of 9 CAT,Lucknow Bench OA No. 332/00404 of 2012 BanwariLal Vs. U.O.I. &Ors. respondents. With due respect to the learned counsel, we opine that her suggestion is not in conformity with the guidelines for judicial review set forth in Subrata Nath (supra).
7.1 In view of the facts and circumstances above, the order dated 30.09.2007 of the disciplinary authority, order dated 28.03.2008 of the appellate authority and order dated 07.06.2012 of the revising authority are quashed and set aside. It shall be open for the respondents to conduct further enquiry to ensure that the findings are confined to the scope of the charge and also that the applicant's statement dated 06.02.2007 is taken into consideration fully, and to pass appropriate orders as per law.
7.2 Pending MAs, if any, are also disposed of.
7.3 The Parties shall bear their own costs.
(Pankaj Kumar) (Justice Anil Kumar Ojha)
Member (A) Member (J)
vidya
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