Jai Prakash vs Central Bureau Of Investigation ...
2003 Latest Caselaw 395 Del

JUDGMENT

Madan B. Lokur, J.

1. The Petitioner was working with the Photo Division of the Central Forensic Science Laboratory. However, since he was infected with pulmonary tuberculosis, he was transferred on medical grounds to the Document Division in August 1986. Thereafter, the Petitioner was transferred from the Document Division to the Chemistry Division by an order dated 27th September 1993. He started working with the Toxicology Branch in the Chemistry Division with effect from 1st October 1993.

2. On or about 4th October 1993, he was entrusted with viscera cutting by his superior officers. According to the Petitioner, he declined to do so because he was apprehensive that due to the presence of obnoxious gases he may suffer a relapse of his tuberculosis. Since the Petitioner refused to perform the work of cutting the viscera, he was apparently asked to make an application for a transfer out of the Chemistry Division, which he did. Along with his application for transfer, the Petitioner submitted some medical certificates.

3. On 23rd October 1993, the Petitioner was served with a charge-sheet containing the following charge: -

"That the said Shri Jai Prakash while functioning as Lab. Attendant in the Chemistry Division (Toxicology), CFSL, CBI, New Delhi, from 1.10.93 to 7.10.93 did not discharge his official duties entrusted to him for viscera cutting as per the instructions of his superior officers, i.e., S/Shri N.K. Prasad, SSO-II, K.S. Chhabra, SSO-I including Shri V.S. Bisaria who is Head of the Division and thereby disobeyed the instructions/orders of his superior officers deliberately and contravened Rule 3(i)(ii) of CCS (Conduct) Rules 1964."

4. A departmental enquiry was held against the Petitioner in respect of the above charge. The enquiry officer in his report dated 1st February 1996 found that the charge against him was proved. On a consideration of the report, the Director of the Central Forensic Science Laboratory, who was the disciplinary authority of the Petitioner, passed an order dated 27th May 1996 removing the Petitioner from service. Feeling aggrieved, the Petitioner filed an appeal, which was disposed of by the Special Secretary to the Government of India by an order dated 5th April 1999. The appellate authority found the charge levelled against the Petitioner as being a serious one and since it had been proved against the Petitioner, it was held that the penalty of removal was commensurate with the gravity of the charge. The appellate authority found no error in the departmental proceedings and held that the Petitioner had been given a reasonable opportunity of defending himself during the enquiry.

5. Feeling aggrieved, the Petitioner filed O.A. No.1535/1998 in the Central Administrative Tribunal, Principal Bench at New Delhi (for short the Tribunal). By an order dated 13th September 2000 the application filed by the Petitioner was dismissed by the Tribunal. This order dated 13th September 2000 is now impugned by the Petitioner through a writ petition under Article 226 of the Constitution.

6. It may be mentioned that after the dismissal of the application, the Petitioner applied for a review and his review application No.373/2000 was also dismissed by the Tribunal by an order dated 21st December 2000. This is also impugned in the writ petition.

7. The only contention urged by learned counsel for the Petitioner is that the enquiry officer had given a special note, in his report dated 1st February 1996, while holding the Petitioner guilty of the charge. This special note was not taken into consideration while imposing the penalty of removal from service. The special note given in the report dated 1st February 1996 reads as follows: -

"Although the charges against Shri Jai Prakash, Lab Attendant, that he refused to cut viscera are fully proved on the basis of detailed enquiry conducted by me in the light of documentary evidence as well as evidence of witnesses brought before me. However, while taking action against the Charged Officer, the following facts and circumstances may also please be taken into consideration:

(i) He was a patient of TB during 1986-87 and he had blood vomiting twice in the office.

(ii) The treating doctor had advised for lighter duties for him.

(iii) He was transferred from one Division of CFSL to another on medical grounds.

(iv) He was doing all other work in the Chemistry Division excepting viscera cutting.

(v) He was again under medical treatment for old Kouch at RML Hospital during 1993 for about two months.

(vi) He was again under treatment at RML Hospital during 1995 and the Doctor certified that he should avoid obnoxious gases.

(vii) His refusal to cut viscera was with the apprehension that this may cause relapsing of his old TB disease.

(viii) His refusal to cut viscera was coupled with written request for his transfer to some other Division of CFSL.

(ix) He is a member of Scheduled Caste community and is a poor Class IV employee."

8. We have gone through the order dated 27th May, 1996 passed by the Director of the Central Forensic Science Laboratory and find that there is absolutely no mention of the special note given by the enquiry officer. All that the disciplinary authority says in his order dated 27th May 1996 is that the Petitioner had not forwarded any medical certificate to show that he was suffering from tuberculosis at the relevant time. It was noted by the disciplinary authority that the Petitioner had not visited any TB Hospital from some time in 1987 to 1993 and it was, therefore, concluded that the explanation about his illness was baseless and unworthy of credence. It was held that the disobedience to the orders given to him was deliberate and with a view to create hurdles in the disposal of urgent cases.

9. It was not the case of the Petitioner that he was actually suffering from tuberculosis in 1993. It was his case that he was earlier a patient of tuberculosis and that he had an apprehension that by cutting the viscera, his disease may relapse. It was in fact due to his inability to cut the viscera that he had asked for a transfer out of the Chemistry Division. These facts were noted by the enquiry officer in his enquiry report dated 1st February 1996. The enquiry officer also noted that even after the incident, some time in 1995 the Petitioner was treated in RML Hospital (which is a Government hospital) and that a doctor from this hospital had certified that he should avoid obnoxious gases. It was in this context that the enquiry officer, even though he found the Petitioner guilty of disobedience to orders, made a special note in the enquiry report. The purpose of this special note was, to our mind, to inform the disciplinary authority that the Petitioner possibly had a genuine problem, which ought to be taken into consideration while awarding punishment to him. Unfortunately, the disciplinary authority completely ignored the special note.

10. We are quite conscious of the fact that the punishment imposed by departmental authorities ought not to be interfered with except in the rarest of rare cases. [see Regional Manager, UPSRTC, Etawah & Ors. vs. Hoti Lal, and Chairman & Managing Director, United Commercial Bank & Ors. vs. P.L. Kakkar, ]. However, in a case where special and relevant factors having a material bearing on the quantum of punishment to be awarded are totally ignored by the departmental authorities in spite of a specific note made by the enquiry officer, the quantum of punishment needs to be reconsidered by them.

11. In the present case, the disciplinary authority as well as the appellate authority completely ignored the special note of the enquiry officer, which was relevant material and of considerable importance in giving them some guidance on the quantum of punishment to be imposed on the Petitioner. The non-consideration of relevant material vitiates the punishment order. [see Associated Provincial Picture Houses Ltd. vs. Wednesbury Corpn, (1948) 1 KB 223].

12. Since the departmental authorities have completely ignored the special note given by the enquiry officer, we see no option but to set aside the order of the disciplinary authority and to direct him to reconsider the quantum of punishment to be awarded to the Petitioner keeping in mind the special note given by the enquiry officer in his report dated 1st February 1996. We order accordingly. The Petitioner apparently belongs to the Scheduled Caste community and is said to be a poor Class IV employee. We would, therefore, direct the disciplinary authority to take a decision on the quantum of punishment to be imposed on him, within a period of six weeks from today and in any case before 31st May 2003.

13. The writ petition is, accordingly, allowed. The order dated 27th May, 1996 passed by the disciplinary authority and the order of the appellate authority dated 5th April 1999 and the orders of the Tribunal dated 13th September, 2000 and 21st December, 2000 are hereby quashed and set aside.

14. Given the circumstances of the case and the non-application of mind by the departmental authorities to relevant facts, the Petitioner will be entitled to costs of Rs.2000/-.