Krishna Kumar vs Union Of India & Ors

Om Prakash VII, Member (J)

The present O.A has been filed by the applicant under section 19 of Administrative Tribunal Act, 1985 seeking following reliefs:-

“i to issue an order/direction in the suitable nature quashing the impugned punishment order dated 31.03.2009 as passed by the respondent NO. 4 as well as appellate order dated 02.08.2010 passed by respondent NO. 3 (Annexure No. A-1 & A-2 to Compilation NO.1 respectively).

ii. To issue an order or direction in the suitable nature of mandamus commanding the respondents to treat the applicant as on duty for the purposes during his suspension period w.e.f. 29.04.2008 to 02.07.2008 and also allow him all consequential benefit thereof.

iii. To issue an order or direction in the suitable nature of mandamus commanding the respondents to upgrade the applicant w.e.f. 09.04.2007 from the date his juniors were promoted with all consequential benefits.

iv, to issue any order or direction, which this Hon’ble Tribunal may deem fit and proper in the facts and circumstances of the case.

v. To award the cost of the application to the applicant”.

The brief facts of the case are that the applicant was initially appointed as Postal Assistant. Thereafter he was appeared in the departmental examination for the post of P.O & R.M.S Accountant and was declared successful. Accordingly, he was upgraded as per rules while his designation remained unchanged. On his requests, by means of memo dated 05.07.2007, the applicant was regularly appointed on the post of Accountant. Surprisingly, the respondent No. 4 issued a letter dated 29.04.2008 (Annexure A-6 to the OA) by which placing the applicant under suspension due to ulterior motive making allegation therein that the applicant could not complete the service book of more than 335 officials. Just after passing the aforesaid suspension order, the authority seized the work of the applicant and took over the charges from the applicant. The suspension order of the applicant was revoked by the respondents vide order dated 01.07.2008 (Annexure A-9 to the OA). He was served a charge-sheet on 1.07.2008 (Annexure A-10 to the OA) by the respondent No. 4/Disciplinary Authority, which was replied by the applicant and denied all the charges leveled against him. The enquiry officer was appointed who submitted his report on 09.3.2009 and found the charges as proved. The Disciplinary Authority imposed the punishment of one stage below in his pay for a period of four years with non-cumulative effect vide order dated 31.03.2009. The appeal filed by the applicant was rejected vide order dated 02.08.2010 without considering single ground of the applicant as was raised in the memo of appeal.

Per contra, it has been stated by the respondents in the counter affidavit that the applicant and the then Accountant was proceeded against under Rule 14 of CCS (CCA) Rules 1965 vide memo dated 01.07.2008. It has been submitted that the disciplinary authority, after considering the representation of the applicant on the charge-sheet issued to the applicant, awarded penalty of reduction in pay by one stage for four years without cumulative effect. Thereafter, the applicant has submitted his appeal, which was decided by the Appellate Authority whereby upheld the order of disciplinary authority.

In the rejoinder, the applicant has reiterated the averments made in the O.A. and further submitted that enquiry officer have totally failed to examine the issue of the case and had submitted his finding in hurry. The applicant raised his objection that the charges levelled against him are contrary to duty assigned to him, hence question does not arises about not fulfilling his work.

Learned counsel for applicant has also filed written submission, by which he has stated that under Rule 11 (v) read with (iii) (a) of CCS & CCA Rules, 1965, disciplinary authority are not empowered to pass punishment order placing the applicant one stage below from his present pay scale for the period of four years without cumulative effect, whereas the rule itself provided that such punishment cannot be exceeded the period of three years. He has also placed reliance of the judgment of Hon’ble Supreme Court in the case of State of U.P. and others Vs. Saroj Kumar Sinha reported in AIR 2010 Supreme Court 3131.

Learned counsel for respondents has also filed written submission by which it has been stated that applicant has not preferred revision against the order of appellate authority which is mandatory under CCS (CCA) Rules, 1965. Hence, the applicant is not entitled for the relief claimed in the O.A.

I have heard Sri Vinod Kumar, learned counsel for the applicant and Shri Rajni Kant Rai, learned counsel for the respondents and perused the record as well as written submission submitted by the parties.

Learned counsel for the applicant argues that applicant has completed pending work prior to his suspension order, therefore, he was not concerned with that of pending work as alleged in the charge-sheet. He further argues that disciplinary authority as well as appellate authority has failed to consider any of the grounds raised by the applicant while passing the impugned order as well as deciding the appeal. Thus in view of the settled principle of law, such orders cannot be sustained in the eye of law because the authorities acted being prejudice with the applicant.

On the other hand, learned counsel contends that the punishment orders issued by the competent authority and appellate authority are self-contained, speaking and reasoned order. The applicant could not put-forth any convincing argument in his appeal against the charges framed against by the disciplinary authority. The applicant has utterly failed to come forth with any cogent ground for filing the present original application.

It is evident from record, that vide order dated 29.4.2008, applicant was placed under suspension because a disciplinary proceedings was pending against him. Suspension of the applicant was revoked vide order dated 1.7.2008 (Annexure No. 9 to the O.A.). Thereafter Memorandum of charge sheet dated 1.7.2008 (Annexure 10 to the O.A.) was served upon the applicant and applicant was asked to submit his reply within 10 days. Applicant submitted his reply on 11.7.2008 (Annexure 11 to the O.A.), denying the charges leveled against him. Enquiry Officer and presenting Officer were appointed to inquire the matter vide order dated 11.7.2008. Statement of the applicant as well as witnesses were recorded. Applicant in para 4.20 himself admitted that as per list of 8 defence witnesses as produced by the applicant, the six witnesses were examined by the Inquiry Officer. Inquiry Officer submitted his enquiry report on 9.3.2009, whereby charges were found proved against the applicant. Disciplinary authority vide letter dated 16.3.2009 asked the applicant to submit his reply within 15 days from the date of receipt of letter. Applicant submitted his defence reply on 30.3.2009, whereby raised the entire irregularities and illegalities committed by the Inquiry Officer. After considering enquiry report and reply submitted by the applicant, disciplinary authority passed the punishment order dated 31.3.2009. Applicant filed an appeal before the Appellate Authority on 4.5.2009, which was also dismissed by the Appellate Authority vide order dated 7.8.2010.

As far as plea taken by the applicant that under Rule 11 (v) read with (iii) (a) of CCS & CCA Rules, 1965, disciplinary authority are not empowered to pass punishment order placing the applicant one stage below from his present pay scale for the period of four years without cumulative effect is concerned, the rule itself provide that such punishment cannot be exceeded the period of three years, this plea has first time taken by the applicant in the written argument. He has never raised this plea in the O.A. nor in the Rejoinder Affidavit. Learned counsel for the respondents have also not commented on this point neither in the Counter Affidavit or in written submission specifically.

Be that as it may, it is now well settled that the scope of judicial review in disciplinary matters is very limited. The court or Tribunal can interfere only if there is violation of principles of natural justice and only if there is violation of statutory rules or it is a case of no evidence. It is also settled that the Court or Tribunal cannot sit in appeal over the decision of the disciplinary authority nor can it substitute its view in place of said authority. Neither any ground of non-supply of relied upon documents is taken by the applicant nor any ground of violation of principles of natural justice is taken, as such this Tribunal can only look into that to what extant it can go into the scope of judicial review in the matter of disciplinary proceedings. As stated above, it is now well settled that the scope of judicial review in a disciplinary matter is very limited. The Tribunal or the Court cannot sit as an Appellate authority as observed by the Honble Apex Court in the case of State of Uttar Pradesh Vs. Raj Kishore Yadav reported in 2006 (5) SCC 673. The Hon’ble Apex Court has been pleased to observe as under:-

“4. On a consideration of the entire materials placed before the authorities, they came to the conclusion that the order of dismissal would meet the ends of justice. When a Writ Petition was filed challenging the correctness of the order of dismissal, the High Court interfered with the order of dismissal on the ground that the acts complained of were sheer mistakes or errors on the part of the respondent herein and for that no punishment could be attributed to the respondent. In our opinion, the order passed by the High Court quashing the order of dismissal is nothing but the error of judgment. In our opinion, the High Court was not justified in allowing the Writ Petition and quashing the order of dismissal and granting continuity of service with all pecuniary and consequential service benefits. It is a settled law that the High Court has limited scope of interference in the administrative action of the State in exercise of extra ordinary jurisdiction under Article 226 of the Constitution of  India and, therefore, the findings recorded by the Enquiry Officer and the consequent order of punishment of dismissal from service should not be disturbed. As already noticed, the charges are very serious in nature and the same have been proved beyond any doubt. We have also carefully gone through the Enquiry Report and the order of the Disciplinary Authority and of the Tribunal and we are unable to agree with the reasons given by the High Court in modifying the punishment imposed by the Disciplinary Authority. In short, the judgment of the High Court is nothing but perverse. We, therefore, have no other option except to set aside the order passed by the High Court and restore the order passed by the Disciplinary Authority ordering dismissal of the respondent herein from service.”

The Hon’ble Apex Court in the case of B.C.Chaturvedi v. Union of India & Ors. Reported in 1995 (6) SCC 749 again has been pleased to observe that the scope of judicial review in disciplinary proceedings the Court are not competent and cannot appreciate the evidence . In this regard, the Hon’ble Apex Court has been pleased to observe as under:-

“The Enquiry Officer submitted his report holding the charges against the appellant to have been proved. After consultation with the UPSC, the appellant was dismissed from service by an order dated 29.10.1986.The Tribunal after appreciating the evidence, upheld all the charges as having been proved but converted the order of dismissal into one of compulsory retirement. The delinquent filed an appeal challenging the finding on merits, and the Union filed an appeal canvassing the jurisdiction of the Tribunal to interfere with the punishment imposed by it. Allowing the appeal of the Union of India and dismissing that of the delinquent.

Per Ramaswamy and Jeevan Reddy, JJ

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”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 reappreciate 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.”

In another case the Hon’ble Apex Court in the case of Union of India Vs. Upendra Singh reported in 1994(3) SCC 357 has been pleased to observe that the scope of judicial review in disciplinary enquiry is very limited. The Hon’ble Apex Court has been pleased to observe as under:-

“In the case of charges framed in a disciplinary inquiry, the Tribunal or Court can interfere only if on the charges framed (read with imputation or particulars of the charges, if any) no misconduct or ir-regularity alleged can be said to have been made out, or the charges framed are contrary to any law. At this stage, the Tribunal has no jurisdiction to go into the correctness or truth of the charges. It cannot take over the function of the disciplinary authority. The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Even after the conclusion of the disciplinary proceedings, if the matter comes to Court or Tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be.”

The Hon’ble Apex Court in another case of State of Uttar Pradesh v. Saroj Kumar Sinha, (2010) 2 SCC 772, has been pleased to observe that the employee should be treated fairly in any proceedings which may culminate in punishment being imposed on him. In the instant case the entire proceedings were carefully considered by the disciplinary authority and full opportunity was given to the applicant in conducting the enquiry and applicant also taken his full defence. The Hon’ble Apex Court has been pleased to observe as under:-

“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. In the present case the aforesaid procedure has not been observed. Since no oral evidence has been examined the documents have not been proved, and could not have been taken into consideration to conclude that the charges have been proved against the respondents.

Apart from the above, by virtue of Article 311(2) of the Constitution of India the departmental enquiry had to be conducted in accordance with the rules of natural justice. It is a basic requirement of the rules of natural justice that an employee be given a reasonable opportunity of being heard in any proceedings which may culminate in punishment being imposed on the employee.

When a departmental enquiry is conducted against the government servant it cannot be treated as a casual exercise. The enquiry proceedings also cannot be conducted with a closed mind. The inquiry officer has to be wholly unbiased. The rules of natural justice are required to be observed to ensure not only that justice is done but is manifestly seen to be done. The object of rules of natural justice is to ensure that a government servant is treated fairly in proceedings which may culminate in imposition of punishment including dismissal/removal from service.”

The purpose of judicial review is to ensure that the individual receives fair treatment. In the case of Govt. of A.P. Vs. P. Chandra Mouli – 2009 (13) SCC 272, it has been held by the Hon’ble Supreme Court that the power of punishment to an employee is within the discretion of the employer and ordinarily the courts do not interfere, unless it is found that either inquiry, proceedings or punishment is vitiated because of non-observance of the relevant rules and regulations or principles of natural justice or denial of reasonable opportunity to defend, etc. or that the punishment is totally disproportionate to the proved misconduct of an employee. Thus, the Tribunal cannot interfere with the findings of Inquiry Officer or Disciplinary Authority where they are not arbitrary or utterly perverse.

As stated above that the Tribunal or the Court cannot sit in appeal over the decision of disciplinary authority nor can substitute its view in place of the said authority. The Tribunal is not competent to go into the quantum of punishment inflicted by the disciplinary authority unless it is shockingly disproportionate. The Tribunal cannot sit as an appellate authority on the decision of the disciplinary authority or exercise their jurisdiction of judicial review in disciplinary matters if there is no apparent illegality. In the present case, the due enquiry was conducted and applicant was also given full opportunity to defend his case. The learned counsel for the applicant also relied upon one decision of the Hon’ble Supreme Court in the case of Sate of U.P. and others Vs. Saroj Kumar Sinha (supra). In the said order the case of the applicant was of non-supply of documents, but in the present case, no such issue is involved. In the instant case the entire proceedings were carefully considered by the disciplinary authority and full opportunity was given to the applicant in conducting the enquiry and applicant also taken his full defence.

Rule 11(v) read with (iii) (a) of CCS (CCA) Rules, clearly provides that “reduction to a lower stage in the time scale of pay for a period not exceeding 3 years, without cumulative effect and not adversely affecting his pension whereas respondents have passed the impugned order for placing the applicant one stage below from his present pay scale for the period of four years without cumulative effect, which is not tenable in the eyes of law and is against the CCS (CCA) Rules, 1965. Accordingly the same is liable to be quashed.

Accordingly, the O.A. is partly allowed. Impugned orders dated 31.3.2009 and Appellate order dated 2.8.2010 are quashed. The matter is remitted back to the disciplinary authority to pass fresh punishment order for placing the applicant one stage below from his present pay scale for the period of three years without cumulative effect instead of four years, as provided in CCS (CCA) Rules, 1965, if so desired. Secondly, when the suspension order has already been revoked by the respondents vide order dated 1.7.2008, relief No. ii is also allowed. Applicant be treated as on duty for all the purposes during his suspension period. As far as, relief No. 3 regarding upgradation of the applicant w.e.f. 9.4.2007 from the date his juniors were promoted is concerned, the same is rejected.

No order as to costs.