Union Of India vs Tej Ram
2010 Latest Caselaw 880 Del

*               IN THE HIGH COURT OF DELHI AT NEW DELHI

+                                W.P. (C.) No.11810/2009

%                           Date of Decision: 16.02.2010

Union of India                                             .... Petitioner
                           Through Mr.H.K.Gangwani, Advocate.

                                       Versus

Tej Ram                                                       .... Respondent
              Through                  Mr.Manjeet Singh Reen, Advocate.

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

1.   Whether reporters of Local papers may be                    YES
     allowed to see the judgment?
2.   To be referred to the reporter or not?                      NO
3.   Whether the judgment should be reported in                  NO
     the Digest?


ANIL KUMAR, J.

*

The respondent who was working as a Superintendent, Land and

Development office was served upon a major penalty chargesheet under

Rule 14 of CCS (CCA) Rules, 1965 for alleged irregularity in a case

which resulted into imposition of a penalty of 5% cut in his pension for

a period of 10 years which was assailed by him by filing an Original

Application being O.A No.2247/2008 titled Tej Ram v. Union of India

which was allowed by the Central Administrative Tribunal, Principal

Bench by order dated 29th May, 2009 which is challenged by the

petitioner, Union of India through the Secretary, Ministry of Urban

Development in the present writ petition.

The Tribunal while quashing the order of punishment noted that

the finding of the enquiry officer that the respondent had verbally

informed to Deputy, Land and Development officer about non

availability and non contactability of the Government counsel,

Ms.Sudha Srivastava, who had to be changed later on which had

resulted into not furnishing the relevant brief to her, had not been

considered. The Tribunal also noted that the enquiry officer assessed

the contributory negligence not to be less than 10% in relation to entire

negligence without any yardstick and basis. The disciplinary authority

also imposed the punishment without recording the finding of either

`grave misconduct' or `grave negligence'. It was also considered that the

advice of UPSC is also without any reasons about the grave misconduct

when the enquiry officer has not doubted the intimation sent by the

respondent to Land and Building Department himself and through his

assistant Shri Dal Chand. In the circumstances it was held that the

condition precedent under Rule 9 (2) of CCS (Pension) Rules, 1972 was

not met and therefore relying on State of Bihar Vs Mohd Idris Ansari,

AIR 1995 SC 1853 and Dr. Dudh Nath Pandey Vs State of Jharkhand &

ors, 2008 (2) SCT 517 it has been held that the order passed is without

jurisdiction and cannot be sustained in law.

The Central Administrative Tribunal, Principal Bench has set

aside the order imposing punishment also on the ground that though

the enquiry officer did not return a finding of gross misconduct, as the

10% of contributory negligence was inferred without any basis. The

disciplinary authority, however, differed with the finding of the enquiry

officer and considered the case to be of gross misconduct. Even for the

alleged inference of gross misconduct, no reasons have been given by

the disciplinary authority nor before reaching the inference of gross

misconduct, the disagreement note was noted and communicated to the

respondent nor he was given a reasonable opportunity to represent

against the alleged disagreement and thus resulting into denial of the

principles of natural justice.

The Tribunal also noted that the order dated 18th October, 2007

is not a speaking order and is based on the advice of the UPSC and the

copy of the advice of the UPSC was also not furnished to the

respondent. Though it has been established that the respondent had

communicated about the development of the case and the fact that the

Government counsel had not intimated about the state of the case and

the next date of hearing and she was not contactable and had also

instructed his subordinate Dal Chand, the lapse on the part of the

Government counsel who ultimately had to be changed and another

counsel was engaged, cannot be imputed to the respondent. It has been

held that in the circumstances it is apparent that the inference of

misconduct is not made out either by the enquiry officer or by the

disciplinary authority except stating that the respondent is liable for the

misconduct.

The Tribunal has also noted that despite its direction to produce

the record to show that the copy of the advice given by UPSC was given

to the respondent, record was not produced and consequently the plea

of the respondent that the copy of the advice was not given to him, had

been accepted and was deemed to be correct. Referring to Rule 17 and

32 of the Rules which mandates furnishing of advice of the UPSC to the

retiree along with the copy of the order imposing penalty, it has been

inferred that the acts of the petitioners are in violation of provisions of

Rules 17 & 32 of the rules and reliance has also been placed on Union

of India v. T.V.Patel, 2007 (6) Scale 9 and consequently the order was

held to be vitiated. The other reasons noted by the Tribunal are that

from the order dated 18th October, 2007 it is apparent that except

highlighting factual matrix no reasons have been given nor recorded

which make the order illegal.

It cannot be disputed that the reason is the foundation,

explanation, consideration, rationale or a ground for an action. It is the

statement of a fact employed as an argument to justify or condemn

some fact. It can also be termed as a fact or circumstance forming a

ground or motive leading or sufficient to lead a person to reject or adopt

some course or action or belief. In the circumstances, merely saying

that the respondent has contributory negligence will be sufficient to

hold that the reason has been given by the disciplinary authority and

the enquiry officer.

The Oxford English Dictionary defines 'reason' as a cause,

explanation or justification or as a good or obvious cause to do

something or as logic or a premise of an argument in support of a belief.

The Black's Law Dictionary on the other hand defines 'reason' as a

faculty of mind by which it distinguishes truth from falsehood, good

from evil and which enables the proposer to deduce inferences from

facts or from propositions. Webster's Dictionary also defines 'reason' as

the cause that makes a phenomena intelligible. The Tribunal

considering the enquiry report and the order of the disciplinary

authority and relying on Rule 9 (1) of the Pension Rules has held that

without the finding of either grave misconduct or grave negligence, the

punishment imposed of reduction of pension of 5% could not be

awarded. From perusal of enquiry report it cannot be inferred that there

is a finding of grave misconduct or grave negligence recorded against

the respondent.

The learned counsel for the petitioner after referring to the

enquiry report and the order of disciplinary authority is unable to show

as to how the finding of grave misconduct has been arrived at especially

in view of the finding of the enquiry officer that the intimation was sent

by the respondent to land and development department himself and

through his assistant Dal Chand. If the intimation had been sent to the

land and development department and through the assistant Sh.Dal

Chand and the counsel could not be contacted as she was not available

who had also not intimated the department about the case and on

account of lapses on the part of the counsel, she had even been

changed by the Department, then for what reasons it had been inferred

that there was contributory negligence on the part of the respondent

and how the contributory negligence could be termed grave misconduct

has not been explained.

The learned counsel for the petitioner is unable to show as to

how in such circumstances, it is a case of a `grave misconduct' which is

the basis of penalty of reduction in pension after the retirement of the

respondent. The learned counsel for the petitioner has also contended

that the disciplinary authority has to give detailed reasons only if it had

differs from the enquiry report. The enquiry officer has not held that the

charge of `grave misconduct' against the respondent had been made

out.

The enquiry officer had inferred that there was contributory

negligence of the respondent to the extent of about 10%. How this

contributory negligence was assessed to be 10% has not been disclosed.

What is the yardstick to assess the contributory negligence to be not

less than 10% or more than 10% has been explained or reasons given.

No rule has been relied on or the basis of such assessment has been

disclosed. In view of such a report of the enquiry officer, if the

disciplinary authority considered it to be a case of `grave misconduct'

then obviously the disciplinary authority is differing or disagreeing with

the findings of the enquiry officer. If that be so then the disciplinary

authority not only had to record the reason for disagreement to make it

a case of grave misconduct but the disciplinary authority also had to

intimate the reasons for disagreement to the delinquent official,

respondent and had to consider his representation. Denial of right to

representation in the facts and circumstances will be denial of

principles of natural justice and consequently in our opinion also the

Central Administrative Tribunal, Principal Bench was justified in

quashing the order of punishment imposed upon the respondent.

In the circumstances there is no such illegality or irregularity in

the order of the tribunal dated 29th May, 2009 which will require any

interference by this Court in exercise of its jurisdiction under Article

226 of the Constitution of India and, therefore, the writ petition is

dismissed.

ANIL KUMAR, J.

FEBRUARY 16, 2010                           MOOL CHAND GARG, J.
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