Brinda Prasad Dixit vs Central Administrative Tribunal ...
2013 Latest Caselaw 5086 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved on 10.7.2013
 
Court No. - 21   
 

 
Case :- WRIT - A No. - 45298 of 2000
 

 
Petitioner :- Brinda Prasad Dixit
 
Respondent :- Central Administrative Tribunal & Others
 
Counsel for Petitioner :- A.P. Tiwari,S.S. Tripathi
 
Counsel for Respondent :- Lal Ji Sinha,A.K.Gaur
 

 

 
Hon'ble Rakesh Tiwari,J.

Hon'ble Bharat Bhushan,J.

(Delivered by Hon. Bharat Bhushan,J.)

(1) By means of this writ petition, petitioner has prayed for following reliefs:

(a) Issue a writ, order or direction in the nature of certiorari quashing the impugned orders dated 2.6.2000, 24.11.1988, 22.9.1989 and 28.5.1990 passed by the respondents.

(b) Issue a writ, order or direction in the nature of mandamus commanding the respondents to reinstate the petitioner in service w.e.f. 24.11.1988 and pay him all the consequential benefits treating him to be in continuous service w.e.f. 24.11.1988 till the date of his superannuation dated 31.7.1990.

(c) Issue any other suitable writ, order or direction as this Hon'ble Court may deem fit and proper to meet the ends of justice.

(2) It appears that petitioner was working as a Booking Clerk at Deoria, Sadar Railway Station. He was found selling forged and fabricated railway tickets on 18.3.1986 and remained absent from the duty without authority from 22.3.1986 to 31.3.1986. A charge-sheet was issued against the delinquent employee/petitioner on 3.6.1987 by Divisional Railway Commercial Superintendent, North Eastern Railway, Varanasi/respondent no. 5 for selling fake tickets and for remaining absent from duty without any authority.

(3) A departmental inquiry was conducted and the inquiry officer on completion of inquiry submitted its report to the disciplinary authority. The disciplinary authority, considering the grave and serious charges, passed the impugned removal order dated 24.11.1988. The petitioner preferred an appeal which on consideration was dismissed by the appellate authority vide order dated 22.9.1989. A revision was preferred by the petitioner before the revisional authority challenging the appellate order which was also dismissed by it vide order dated 28.5.1990.

(4) Aggrieved by the order of disciplinary authority, the petitioner filed Original Application No. 354/1991 before the appellate authority i.e. Central Administrative Tribunal, Allahabad Bench Allahabad (hereinafter referred as Tribunal) which was dismissed vide judgment and order dated 2.6.2000. It is this order of Tribunal which is primarily under challenge before this Court.

(5) Heard Sri A.P. Tiwari, learned counsel for the petitioner and Sri A.K.Gaur, learned counsel for the respondent.

(6) Counsel for the petitioner has challenged the order of Tribunal on the ground that Tribunal did not consider that some of the witnesses were not examined at all; that due credence was not given to the defence evidence. Counsel for the petitioner has pointed out that inquiry did not establish that fake tickets in question were sold by the petitioner because witness Jangli could not identify the petitioner/delinquent employee. Sri A.K. Gaur, counsel for respondent submitted that identity of seller of fake tickets was never in doubt. In any case, disciplinary authority was satisfied with the available evidence. His judgment cannot be called in question in writ jurisdiction unless this Court thinks that conclusions of disciplinary authority are mala fide or perverse or both.

(7) The Central administrative Tribunal does not hear appeals from the decision but reviews the manner in which the decision is made. The Tribunal, is expected to ensure that delinquent employee receives fair treatment and inquiry on the charges of misconduct is conducted by observing the principles of natural justice and prevailing rules. Tribunal should also see whether findings or conclusion are based on evidence and whether the inquiry officer has jurisdiction to conduct such inquiry. Ordinarily the sufficiency of evidence and reliability of evidence is not within the domain of Tribunal. When the competent authority accepts the evidence and comes to a conclusion, that conclusion cannot be disturbed merely on the ground that the Tribunal holds the contrary opinion. The appellate authority can re-appreciate the evidence or the nature of punishment. But the Tribunal is not expected to re-appreciate evidence and come to its own independent findings. The Tribunal can interfere where it appears that the delinquent employee has been dealt in a manner inconsistent with the Rules of natural justice or in violation of statutory rules prescribed in the mode of inquiry or where the conclusions are based on no evidence.

(8) The petitioner tried to raise the question of sufficiency of evidence before the Tribunal and his identification by the witnesses. Tribunal noted that there was only one ticket window at Deoria, Sadar Railway Station during the relevant period and found that the conclusion drawn by the disciplinary authority that it was the petitioner who sold ticket was reasonable, however it refrained from scrutinizing the evidence in detail on the ground that it was not appellate authority and concluding that there was reasonable amount of evidence before the disciplinary as well as the appellate authority whose findings were not based on no evidence. The Tribunal also found that disciplinary proceedings against the petitioner were properly conducted.

(9) We are of the considered view that this Court is also not an appellate court against the order of competent authority or appellate authority. Similarly, this Court cannot exercise the powers of court of appeal over the decision of authorities holding departmental inquiry or against the orders of Tribunal.

(10) Hon'ble Apex Court in the case of High Court of Judicature At Bombay through its Registrar Vs. Shashikant S. Patil and another (2000) 1 SCC 416 has held that High Court is not constituted under Article 226 of the Constitution as court of appeal over the decision of authorities holding a departmental inquiry. The relevant portion of the decision of Hon'ble Apex Court is reproduced below:

The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/ disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such inquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the inquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution.

In State of Andhra Pradesh v. S. Sree Rama Rao , this Court has stated so and further observed thus:

The High Court is not constituted in a proceeding under Article 226 of the Constitution as a Court of appeal over the decision of the authorities holding departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf and whether the rules of natural justice are not violated. Whether there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence.

The above position has been reiterated by this Court in subsequent decisions. One of them is B.C. Chaturvedi v. Union of India .

The reasoning of the High Court that when the Disciplinary Committee differed from the finding of the Inquiry Officer it is imperative to discuss the materials in detail and contest the conclusion of the Inquiry Officer, is quite unsound and contrary to the established principles in administrative law. The Disciplinary Committee was neither an appellate nor a revisional body over the Inquiry Officer's report. It must be borne in mind that the inquiry is primarily intended to afford the delinquent officer a reasonable opportunity to meet the charges made against him and also to afford the punishing authority with the materials collected in such inquiry as well as the view expressed by the Inquiry Officer thereon. The findings of the Inquiry Officer are only his opinion on the materials, but such findings are not binding on the disciplinary authority as the decision making authority is the punishing authority and, therefore, that authority can come to its own conclusion, of course bearing in mind the views expressed by the Inquiry officer. But it is not necessary that the disciplinary authority should "discuss materials in detail and contest the conclusions of the Inquiry Officer." Otherwise the position of the disciplinary authority would get relegated to a subordinate level.

Legal position on that score has been stated by this Court in A.N. D' Sitva v. Union of India [1962] Suppl. 1 SCR 968, that neither the findings of the Inquiry Officer nor his recommendations are binding on the punishing authority. The aforesaid position was settled by a Constitution Bench of this Court way back in 1963, Union of India v. H.C. Gael. . The Bench held that "the Government may agree with the report or may differ, either wholly or partially, from the conclusion recorded in the report." Their Lordships laid down the following principle:

"If the report makes findings in favour of the public servant and the Government disagrees with the said findings and holds that the charges framed against the public servant are prima facie proved, the Government should decide provisionally what punishment should be imposed on the public servant and proceed to issue a second notice against him in that behalf."

(11) Learned counsel for the petitioner has pointed out that appellate authority did not pass a detailed order. It has pointed out in para-6 of the petition that appellate authority has passed following order in following manner on 22.9.1989:

"(i) I have gone through the appeal of Sri Dixit and find that no new point has been brought out in the appeal.

(ii) I also do not find it necessary to give him another opportunity to put his case.

(iii) Appeal dismissed."

(12) Learned counsel for the petitioner has described the aforesaid order as non-speaking order but this argument is not sustainable in the eye of law. A detailed inquiry was conducted after which a detailed charge-sheet was issued and dismissal order was passed by the disciplinary authority concurring with the findings of inquiry officer. As disciplinary authority was in agreement with inquiry officer, there was no occasion for disciplinary authority to give detailed reasons.

(13) Hon'ble Apex Court in the case of National Fertilizers Ltd. and another Vs. P.K. Khanna 2005 SCC (L&S) 1006 has held that it is not necessary for disciplinary authority to give a reason if agrees with the findings of inquiry officer. The relevant portion of judgment of Apex Court is reproduced below:

We are unable to agree with the reasoning or with the conclusion reached by the High Court. We have quoted the conclusions of the Enquiry Officer. It could not be said that the Enquiry Officer had not reached a firm conclusion with regard to both the charges as far as the respondent was concerned. It is true that the Enquiry Officer said that there was no procedure laid down in writing relating to the defacement of rejected bags. But he did not say that there were no instructions given to the respondent to ensure the defacement of rejected bags. In fact the Enquiry Officer had listed his conclusions and findings at the end of his report from which it is abundantly clear that he was convinced that instructions had been issued to the respondent to deface the bags before dispatching them to the supplier. The Enquiry Officer held that the respondent alone was not responsible for the lapse. This did not mean that he had not come to a firm conclusion that the respondent was responsible. As far as charge No. 2 is concerned the conclusion was categorical that it had been proved against the respondent.

Apart from misreading the Enquiry Officer's report, the High Court also misapplied the law. The various decisions referred to in the impugned judgment make it clear that the Disciplinary Authority is required to give reasons only when Disciplinary Authority does not agree with finding of the Enquiry Officer. In this case the Disciplinary Authority had concurred with the findings of the Enquiry Officer wholly, in Ram Kumar v. State of Haryana 1997 (Suppl.) SC 582, the Disciplinary Authority after quoting the content of the charge-sheet, the deposition of witnesses as recorded by the Enquiry Officer, the finding of the Enquiry Officer and the explanation submitted by the employee passed an order which, in all material respects, is similar to the order passed by the Disciplinary Authority in this case. Learned Counsel appearing on behalf of the respondent sought to draw a distinction on the basis that the Disciplinary Authority had, in Ram Kumar's case itself quoted the details of the material. The mere quoting of what transpired would not amount to the giving of any reasons. The reasons were in the penultimate paragraph which we have said virtually used the same language as the impugned order in the present case. This Court dismissed the challenge to the order of punishment in the following words:-

"In view of the contents of the impugned order, it is difficult to say that the punishing authority had not applied his mind to the case before terminating the services of the appellant. The punishing authority has placed reliance upon the report of the Enquiry Officer which means that he has not only agreed with the findings of the Enquiry Officer, but also has accepted the reasons given by him for the findings. In our opinion, when the punishing authority agrees with the findings of the Enquiry Officer and accepts the reasons given by him in support of such findings, it is not necessary for the punishing authority to again discuss evidence and come to the same findings as that of the Enquiry Officer and give the same reasons for the findings. We are unable to accept the contention made on behalf of the appellant that the impugned order of termination is vitiated as it is a non-speaking order and does not contain any reason. When by the impugned order the punishing authority has accepted the findings of the Enquiry Officer and the reasons given by him the question of non-compliance with the principles of natural justice does not arise. It is also incorrect to say that the impugned order is not a speaking order".

We respectfully adopt the view. The position is further clarified by Rule 33 of the Employees (Conduct Discipline & Appeal) Rules. It reads as follows:-

1. The Disciplinary Authority, if it is not itself the Enquiring Authority may, for reasons to be recorded by it in writing remit the case to the Enquiry Authority for fresh or further Enquiry and report and the Enquiring Authority shall there upon proceed to hold the further Enquiry according to the provisions of Rule 32 as far as may be.

2. The Disciplinary Authority shall, if it disagrees with the findings of the Enquiring Authority on any article of charge, record its reasons for such disagreement and record its own findings on such charge, if the evidence on record is sufficient for the purpose.

3. If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in Rule-29 should be imposed on the employee shall, notwithstanding any thing contained in Rule 31, make an order imposing such penalty.

4.If the disciplinary authority having regard to its findings on all or any of the articles of charge, is of the opinion that no penalty is called for, it may pass an order exonerating the employee concerned."

It is apparent from Sub-rule (2) that the Disciplinary Authority is not required to record its reasons if it concurs with the Enquiry Officer's findings in contradiction with the situation in which the Disciplinary Authority disagrees with the findings of the Disciplinary Authority. Only in the latter case does Sub-rule (2) expressly mandate that the Disciplinary Authority shall, if it disagrees with the findings of the Enquiry Officer record its reasons for such disagreement as well as its own findings on such charges.

(14) We have carefully examined all the material available on record and are convinced that inquiry was conducted in a transparent, fair and reasonable manner. Sufficient opportunity was given to the petitioner/delinquent employee to defend himself. The disciplinary authority considered the material before it and passed the order in question. The revisional authority and the Tribunal also considered material before it and then came to the reasonable conclusion.

(14) For all the reasons stated above, we are of the considered opinion that writ petition is legally not sustainable. It is, therefore, dismissed with costs which is quantified as Rs.5000/-.

Order Date :- 14.8.2013

Meenu