Shri S.K. Mazumdar vs Union of India (UOI) and Others

Pathak, C.J. (Actg)

This petition under Article 226 of the Constitution of India is directed against the appellate order passed by the Secretary to the Government of India. Ministry Information and Broadcasting, New Delhi-1, on 10th September. 1974, In an appeal preferred by the petitioner against his order (SIC) removal from service. The impugned appellate order reads as follows:

No. C-16013/1/74-Spl GOVERNMENT OF INDIA MINISTRY OF INFORMATION AND BROADCASTING, Dated New Delhi-1, the 10th September, 1974. ORDER

WHEREAS an Inquiry under Rule 14 of the Central Civil Service (Classification, Control & Appeal) Rules, 1965 was held against Shri S.K. Majumdar, former Projectionist. Field Exhibition Unit, Gauhati in respect of the following charges:

(i) that he in connection with exhibition at Hojai, intentionally showed false attendance of the workers engaged in the exhibition in the muster rolls and there by facilitated showing of Inflated payment of Rs. 230.50 and;

(ii) that be in connection with the exhibition at Haflong. Nowgong. Hojai and Karimganj, wrongfully arranged the transportation of exhibition materials at these places and also made payments and facilitated submission of false bills by the contractor (SIC) charges for the said transportation.

WHEREAS both the articles of charge were held proved by the inquiry Officer;

WHEREAS the disciplinary authority considered the report of the inquiry Officers carefully and issued a show cause notice to Shri Majumdar vide DAVP Memorandum No. 1967-V (Vol. III) dated 16.5.1973 as to why the penalty of removal from service may not be imposed on him.

WHEREAS, after carefully considering the representation dated 11.6.1973 submitted by Shri Majumdar in response to the above show cause notice, the disciplinary authority imposed the penalty of removal from service on Shri S.K. Majumdar vide DAVP''s order No. 1/9/67-V dt. 24 9.73.

WHEREAS, Shri S.K. Majumdar, submitted an appeal dated 5.11.1973 to the undersigned against the aforesaid orders of the Director, Advertising and Visual Publicity.

And WHEREAS the said appeal has been examined carefully by the undersigned and be finds no justification to interfere with the decision already taken in the matter by the Disciplinary Authority.

Now, THEREFORE, the undersigned hereby orders that the appeal be rejected.

Sd/- A.J. Kidwal Secretary to the Govt. of India

Copy to shri S.K. Majumdar, Ex-Projectionist, Field Exhibition Unit, Gauhati (Through DAVP).

A brief narration of the facts leading to the (SIC)are that the Petitioner was appointed as projectionist in and was attached to the field Exhibition Office under the (SIC) of Advertising and visual Publicity, Ministry of nation and Broadcasting and was posted at Gauhati at the (SIC) time. On 25.1.68/4.2.68, the Petitioner was placed under (SIC) on the ground that a Departmental proceeding was templated against him by order of Respondent No. 3, being 1/9/67 v. dated 25.1.68/4.2.68. Consequently the Articles of argee were issued against the Petitioner and they read as under:

That the said Shri S.K. Mazumdar, while functioning as Projectionist at Field Exhibition Unit, Gauhati during 1967 did not maintain absolute integrity and devotion to duty inasmuch as:

He, in connection with expenditure of holding exhibitions at Hojai Intentionally showed false attendance of the workers, engaged in the exhibition, in the muster rolls relating to Vr. Nos. 12 dt. 29.7.67, 23 dt. 10.8.67, 19 dt. 3.8.67, 20 dt. 8.8.67 and 15 dt. 7.8.67 and there by facilitated showing of inflated payment of Rs. 230,50 in respect of those vouchers ;

He, in connection with the transportation of the exhibition materials at Haflong, Nowgong, Hojai and Karimganj wrongfully arranged the transportation of exhibition materials at those places and also made payments and facilitated submission of false bills by the contractor claiming charges for the the said transportation;

And thereby contravened Sub-clauses (i) and (ii) of Clause (1) of Rule 3 of the Central Civil Services (Conduct) Rules, 1964.

The Departmental proceeding was launched against the (SIC) under the Central Civil Services (Classification, Control Appeal) Rules. 1965, (hereinafter referred to as ''the Act'') the Enquiry Officer found all the charges levelled against the (SIC) to be fully proved. The disciplinary authority accepting findings of the Enquiry Officer and removed him (Petitioner) service after giving him opportunity of showing cause. The (SIC) being aggrieved preferred a long appeal as envisaged Rule 27 of the Rules, on which the impugned order was The relevant provision of Rule 27 of the Rules read Under:

(1)

(2) In the case of an appeal against an order imposing any of the penalties specified in Rule 1 OR enhancing any penalty imposed under the (SIC) rules, the appellate authority shall consider.

(a) Whether the procedure laid down in these rules has been complied with and if not, whet-her such non-compliance has resulted in the Violation of any provisions of the Constitution of India or in the failure of justice;

(b) Whether the findings of the disciplinary authority are warranted by the evidence on record; and,

(c) Whether the penalty or the enhanced penalty imposed is adequate, inadequate, or severe ;

(SIC) pass order-

confirming, enhancing, reducing, or setting aside the penalty ; or

(ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case:

(SIC)rule (2) of the aforesaid rule in NO uncertain term has (SIC)ed the appellate authority to consider

Whether the procedure laid down in the rules has been complied with and if not whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice;

Whether the findings of the disciplinary authority are warranted by the evidence on record; and Whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe.

On careful perusal of the impugned order, we find that palate authority did not at all address itself to the relevant one of the aforesaid Rules. The appellate authority merely the order in a mechanical manner without giving any due ration to the provisions of the rules contained in sub-''.)'' of Rule 27 of the Rules, In our opinion, this is not oper way of the disposal of an appeal.

(SIC)om the order of the disciplinary authority it is found are Enquiry Officer recorded the evidence of some of the witnesses. The impact of the evidence on the proceeding has not at all been considered by the appellate authority. In fact the appellate authority did not appreciate the evidence at all; nor has he taken into consideration the case of the Appellant which was filed by a long memorandum of appeal. We are coustrained to observe that when the statutory authority has been given the power and jurisdiction to dispose of an appeal, it must conform to the: rules by which such authority is to dispose of the appeal and decide the matter between the parties. In this case, clearly the appellate authority has not done anything in the matter in conformity with the provisions of Rule 27 of the Rules. In the penultimate paragraph of the impugned order, the appellate authority has simply said:

And WHEREAS the said appeal has been examined carefully by the undersigned and he finds no justification to interfere with the decision already taken in the matter by the Disciplinary Authority", This is not the way how the appeal should have been disposed of by the appellate authority.

A similar question of law came up for consideration by a Division Bench of this Court in Pashupati Banerjee Vs. Deputy Chief Engineer (North), North East Frontier Rly. and Others . There, the Petitioner, a railway servant, against his removal from service after the Depart-mental enquiry, preferred an appeal under Rule 1721 of the Indian Railways Establishment Code, Vol. I. The appellate authority passed a very cryptic order which was noticed by this Court. It reads as follows:

I have carefully gone through the appeal of Shri P. Banerjee as well as the relevant papers connected therewith. I consider that the penalty imposed on him should stand. He may be replied accordingly.

On consideration of the above appellate order, this Court has rated as under:

As to how appeals have to be dealt with is mentioned in R. 1721 of the Indian Railways Establishment Code, Volume 1, at page 1720, and the heading of the rule is "Duties of Appellate Authorities. This rule says-

''The appellate authority shall consider-(a) Whether the facts on which the order was based have been established; (b) Whether the facts established afford sufficient ground for taking action; and (c) Whether the penalty imposed is adequate, inadequate or excessive.

From the cryptic order of the appellate authority which I have just quoted, none of these requirements appear to have been fulfilled. It is a matter of great importance not only to the Railway servant, Involved but to the prestige and sense of fair play of the Railway Administration itself, that the appellate authority should give particular attention to the matters mentioned in the rule, and in the light of these, I decide the appeal.

Even if there had been no rules, I should have thought that the demand of natural justice was that the points raised in the memorandum of appeal should have been properly considered and due weight given by the appellate authority has disposed of the appeal amounts to no consideration of the appeal at all.

(SIC) are in respectful agreement with the above observation (SIC) Division Bench of this Court and we find that in the (SIC) band also the appellate authority did not consider the (SIC) its proper perspective giving due weight on the grounds (SIC) in the appeal by the Petitioner.

We are clearly of opinion that the appellate order im(SIC) before us is not sustainable in law and accordingly (SIC) the is quashed. The appellate authority now may dispose of appeal in accordance with law as indicated above.

In the result this petition is allowed. The Rule is made (SIC). But In the facts and circumstances of the case, we (SIC) order as to costs.

(SIC)ransmit the records of the case immediately to the (SIC) appeauthority for disposal of the appeal in accordance with (SIC) an early date, preferably within four months from today.