Girdharilal Katara vs Union Of India & Ors

Heard on the question of admission.

This miscellaneous petition under Article 227 of the Constitution of India has been filed by the petitioner against the order dated 16/03/2018 passed by

the Central Administrative Tribunal, Japalpur, Bench at Indore in O.A. No.201/01003/2014 whereby the learned Tribunal, considering the finding of

Inquiry Officer, Disciplinary Authority, Appellate Authority and Revisional Authority has held that they have dealt with the case of the petitioner as

per law and there is no ambiguity or illegality in the orders of punishment at various level and no case is made out to interfere with the punishment

passed by the authorities and dismissed the O.A.

Brief facts of the case are that against the order of punishment dated 22/09/2009 and also against dismissal of appeal in revision respectively

whereby, the punishment of removal from service has been imposed by the Disciplinary Authority, which has been upheld by the Appellate Authority

and Revisional Authority.

The petitioner has sought for the following reliefs :

“8.1 to call for original records of the case and to quash & set aside the impugned order dated 22.09.2009 (Annexure A -6), Appellate order

dated 14.07.2010(Annexure A-8) and order in Reversion dated 01.04.2014(Anexure A-10).

8.2 it may kindly be set aside the punishment order (Annexure A-6) passed by the Respondent No.4; and the Appellate Order (Annexure A-10)

passed by the respondent No.2.

8.3 The respondent authority is please directed to modify the punishment of removal to that of Compulsory Retirement and pay pension and pensioner

benefits.

8.4 The impugned order at Annexure A-6, A8 and A-10 is please quash and set aside considering the punishment of “Removal from serviceâ€

after 30 years of service and after 59 years of age is too much and disproportionate punishment, when there is no loss to the department and no loss to

any public member. In the light of case of C.B. Chaturvedi & Others, reported in 1995 (6) SCC 749 at page 764, the relevant part of the judgment as

under :-

“Constitution of India, Article 226, 142Administration Tribunals Act (13 of 1985) sec.19-imposition of punishment on Government servant by

disciplinary and appellate authority interference by High Court/Tribunal-Punishment shocking conscience of High Court/Tribunal. It can direct

authority ton reconsider punishment . It may itself, to shorten litigation impose appropriate punishment with cogent reasons in support thereof.â€​

8.5 Pl. allow my application in the light of judgment passed by Ho'ble Supreme Court in case of Rrushnkant B. Parmar vs. Union of India, (2012) 3

SCC 178.

8.6 Direct the respondent to grant with all the consequential benefits.

The case of the petitioner is that the petitioner, while working on the post of Mail Peon, was issued with a chargesheet dated 20/06/2006 under Rule

14 of the CCS(CCA) Rules, 1965. On 26/02/2007, the petitioner filed reply to the charges levelled against him. The Inquiry Officer has submitted

the inquiry report to the respondent No.5. On 11/05/2009, the respondent No.5 sent a copy of the inquiry report to the petitioner and the petitioner

has submitted his representation on 29/05/2009 to the inquiry report. The Competent Authority after considering the reply passed the order of

punishment on 22/09/2009 and the petitioner was removed from service. Against the order of punishment, an appeal was filed by the petitioner, which

was dismissed on 15/01/2010 by the learned Appellate Authority. Thereafter, he preferred revision petition to the respondent No.2 on 30/04/2013,

which was also dismissed on 1/04/2014.

The main ground of the writ petitioner is that the order passed by the Disciplinary Authority is illegal, arbitrary and without proper application of

mind. His contention before the learned Tribunal that he being in need of document, were not made available by the respondents intentionally and the

documents have also not been produced intentionally.

Therefore, he could not produce his defence strongly.

As per reply of respondents the petitioner was continuously absent from duty since 30/08/2005, without prior information and sanctioned leave. A

notice was served upon him on 24/03/2006 directing him to join the duty, but the petitioner neither assumed the charge nor replied to the notice.

Therefore, as per procedure contained in Rule 62 and 63 of Postal Manual, Vol.III, a disciplinary action was initiated and charge-sheet under Rule 14

of the CCS(CCA) Rules, 1965 was issued.

The case of the department that during pendency of Departmental Inquiry(DE) the petitioner did not produce any defence document for justifying

the unauthorised absence and the Inquiry Officer found the charge proved vide its report dated 2/05/2009. Before taking decision on the charges

levelled against the petitioner, a copy of inquiry report was sent to the petitioner giving him reasonable opportunity to defend himself and to submit the

representation against the inquiry report. The petitioner failed to submit the representation. Therefore, the Disciplinary Authority has passed the

order dated 22/09/2009, awarding punishment of removal from service.

The learned Tribunal recorded the following findings in paras 11, 12, 13, 14, 15, 16, 17 and 18 :-

As per Annexure A-1 dated 20.06.2006, a charge-sheet has been served upon the applicant. In Article 1 of the charges, specific charge regarding

the absence from duty since 30.08.2005, without any information sanctioned from the competent authority, has been levelled against the applicant.

Along with the chargesheet, list of documents relied upon and name of witnesses,were also supplied to the applicant. It is relevant to mention that

applicant has not made any representation against the memo of charge-sheet, therefore, the department had proceeded further in the matter and the

Inquiry officer was appointed accordingly.

The applicant appeared in the inquiry and made application (Annexure A-2) to the Inquiry Officer and has sought for some documents, which are

to be used in his defence. The Inquiry Officer has specifically dealt with the application of the applicant and has allowed the applicant to do so. So, the

contention of the applicant that he was not allowed to produce the defence documents, does not seem to be valid. It is clear from the inquiry

report(Annexure A-3), running page 5 ) that the application made by the applicant was accepted but the documents relied upon by him were not

produced before the Inquiry Officer, as they were not available with the custodian officer.

The next contention of the applicant is that in the inquiry report, the Inquiry Officer found one charge partly proved and regarding the absence

from duty w.e.f. 30.08.2005 to 04.09.2005, the charge has not been proved. Regarding this contention, the Inquiry Officer, in its report (Annexure A-

3, running page 7) has dealt this issue. Though, the Inquiry Officer has held that the applicant, as per document P-4/A, was absent and he has

submitted medical certificate for justifying his absence w.e.f. 32.08.2005, however, the Inquiry officer has further, in the next immediate para, has

explained the position regarding the further absence w.e.f. 03.09.2005. it has been observed by the Inquiry officer that there is no explanation or

document or evidence on record, which proves the justified absence of the applicant. So, the contention of the applicant in this regard is totally vague

and is not maintainable because the Inquiry officer has already dealt with this issued in detail.

The applicant has also raised the contention that the respondent No.5 has recommended the respondent No.4(Disciplinary Authority) to award the

major punishment, which is an act of preconceived on behalf of the respondent No.4. However, as per Annexure A6, though the Disciplinary

Authority has indicated in para 9 that the document dated 30.08.2009 has also been received, but in the next para 10, the Disciplinary Authority has

given detailed reason and has specifically mentioned that after going through tall the documents, i.e. inquiry report, [prosecution witnesses and the

defence taken by the applicant and after thorough examination, the contention of the applicant has been rejected and the Disciplinary Authority has

awarded the punishment.

Further contention of the applicant is that the inquiry Officer has not dealt with the issue of willful absence from duty. This contention of the

applicant is also not maintainable due to the fact that in the inquiry report (Annexure A-3, internal page 8), the Inquiry Officer has clearly dealt this

issue and it has been observed that the applicant failed to submit any evidence/document regarding his unauthorised absence. It as been further

observed by the Inquiry officer that the applicant has not put any defence or has not made any defence witness qua the fact that absence from duty

was not willful. Rather, it has been specifically mentioned by the Inquiry officer at internal page 11 of the inquiry report that the defence of the

applicant was that due to the frequent transfer, he was mentally upset and could not join the duty. It is relevant to mention that the Inquiry Officer has

also dealt with this issue and has specifically observed that regarding this defence, there is no evidence has been produced in the inquiry. Further, int

the internal page 9 of the inquiry report, it has been observed by the Inquiry Officer that the certificate regarding the illness of the applicant, has been

made available to the Inquiry officer after a period of three and half years, which is suspicious in nature. More so, the Inquiry officer has further

observed at page 11Â of the inquiry report that despite the repeated notice given by the department, the applicant failed to report to the duty and also

did not respond to the notice. Thus, this fact also proves that the applicant's absence from the duty was willful in nature.

The learned counsel for the applicant has relied upon the judgment of hon'ble Supreme Court in the case of Krushnakant B. Parmar vs. Union of

India and another, (2012) 3 SCC 178. In that case,the Hon'ble Supreme Court has held that if absence is due to compelling circumstances under

which it is not possible to report for or perform duty, such absence cannot be held to be willful. However, in the present case, the facts are

otherwise. The Inquiry officer has dealt with all the documents made available in the inquiry proceeding and has come to the conclusion that the

unauthorized absence of the applicant was willful in nature. Hence, the reliance placed by the applicant is distinguishable to the present case.

Regarding the contention of the applicant that the Appellate Authority has not dealt with the grounds of appeal, it is relevant to mention that as per

Annexure A-8, the Appellate Authority has mentioned all the grounds raised by the applicant in his appeal and has given its reasoning in internal page

5 of the order. Thus, the argument put-forth by leaned counsel for the applicant does not seem to be attractive, in view of the detailed order passed by

the Appellate Authority.

The counsel for the applicant has also further raised the question regarding the non speaking order passed by the Revisional Authority. However,

as per Annexure A-10, the Revisional Authority has dismissed the revision filed by the applicant and detailed order has been passed by the said

authority after dealing with all the grounds raised by the applicant parawise. Therefore, the argument regarding the non speaking order passed by the

revisional Authority, is not sustainable.

The allegation against the petitioner is that he was absent from duty since 30/08/2005 to 4/09/2005. The Hon'ble Supreme Court in the case of

Krushnakant B. Parmar v. Union of India & Anr. (2012) 3 SCC 178Â has held that if the absence is the result of compelling circumstances under

which it was not possible to report or perform duty, such absence cannot be held to be willful.

In the case in hand, the facts are otherwise. The Inquiry Officer has considered all the documents made available in the inquiry proceedings and

has come to the conclusion that unauthorsied absence of petitioner was willful in nature.

Learned counsel for the petitioner has submitted that no opportunity was granted before the Inquiry Officer and nor his prayer to file some more

documents has been accepted and there is violation of statutory provisions and law laid down by this Court as well as by the Honble Apex Court from

time to time. He failed to point out any of the violation of statutory provisions and grant of reasonable opportunity to prove his case. The Appellate

Authority has considered all the grounds raised by the petitioner in his appeal and has given its reasoning in the order.Â

It is well-settled that in writ petition filed under Article 227 of the Constitution of India, we cannot re-appreciate the evidence and come to itsÂ

own conclusion on the proof of a particular charge, as the scope of judicial review is limited to the process of making the decision and not against

the decision itself and in such a situation the Court cannot arrive on its own independent finding. There is no error of law. The learned Tribunal has not

committed any legal error in dismissing the O.A. filed by the petitioner and upholding the order passed by the Disciplinary Authority, Appellate

Authority and Revisional Authority.

The Miscellaneous Petition No.2687/2018 filed by the petitioner has no merit and is, accordingly, dismissed. No costs.