Delhi High Court
Union Of India vs K. Asaiah on 3 June, 2016
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
Judgement reserved on: 04.05.2016
% Judgement delivered on: 03.06.2016
+ W.P.(C) 4682/2014
UNION OF INDIA ..... Petitioner
Through: Mr Sameer Agrawal, Adv.
versus
K. ASAIAH ..... Respondent
Through: Mr Ravindra S. Garia, Adv.
CORAM:
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE NAJMI WAZIRI
NAJMI WAZIRI, J
1. This petition impugns the final order dated 02.01.2014 passed
by the Central Administrative Tribunal, Principal Bench, New Delhi
(the Tribunal) in OA No. 2218/2012, which quashed and set aside the
disciplinary proceedings, including the Memorandum of Charge-sheet
dated 30.04.2008 and the order of the Disciplinary Authority („DA‟),
which had imposed the punishment of compulsory retirement upon
the respondent. The impugned order also quashed the order dated
23.05.2012 passed by the Revisionary Authority that had rejected the
respondent‟s review application. The petitioner was also directed to
forthwith reinstate the respondent in service alongwith all
consequential benefits. An opportunity was, however, granted to the
Disciplinary Authority to hold fresh inquiry proceedings in
accordance with provisions contained in Rule 14 of the CCS (CCA)
Conduct Rules, 1965 (1965 Rules) against the respondent from the
stage it had been quashed by the Tribunal. However, any such
proceeding would have to be untrammelled by the petitioner‟s earlier
assertions in the Article of Charge - that the respondent employee had
indulged in unfair practice of manoeuvring and manipulating in order
to get his transfer cancelled by any means.
2. While working as Director, Regional News Unit, Hyderabad,
the respondent was transferred as Director, DFP, Guwahati by the
Ministry of Information & Broadcasting (in short M/o I&B) by Order
No. 176/2005-IIS dated 12.12.2005. The petitioner was conscious
that despite this transfer order, the respondent had managed to
continue at his Hyderabad post till May, 2006 and hence a letter dated
30.05.2006 (issued by it on 10.06.2006) directed the AIR, Hyderabad
to relieve the respondent forthwith. On 07.07.2006, the respondent
relinquished his charge in Hyderabad, but four days later, on
10.07.2006, he resumed the charge in Hyderabad on the basis of three
allegedly fake communications. These communications included two
letters from the Secretary(I&B), one of which was endorsed to the
Under Secretary (IIS). The third document was an undated telegram,
which too communicated that the respondent‟s request for retention at
AIR, Hyderabad in his capacity as Director was under active
consideration and that he should be retained in the same capacity till
further orders.
3. When the respondent did not report at the Guwahati posting and
continued to work at Hyderabad, an explanation was sought from
AIR, Hyderabad. It was then discovered that the three aforesaid fake
communications had been the basis of respondent‟s continuance in
Hyderabad.
4. A fact finding inquiry was conducted by the Director General,
NSD, AIR. His report held that: (i) the respondent failed in
compliance of his transfer order to Guwahati; (ii) instead, he had
indulged in the unfair practice of manoeuvring and manipulation of
his order of transfer getting cancelled by any means; (iii) there was an
assumption that the respondent being the sole beneficiary of the
aforesaid fake orders, coupled with his evasive replies to the
questions asked about the same and since presumably no one else
would engineer such a fake communication, a clear suspicion arose
towards the respondent. The Inquiry Report further opined that the
facts and circumstances indicated that the respondent was also
directly or indirectly involved in the origin of the three aforesaid
communications to the Station Director, Hyderabad, as it was evident
from his previous communications that he wanted to continue in
RNS, AIR Hyderabad at any cost. Finally, the report concluded that
the respondent had approached the Station Director, Hyderabad
immediately after the receipt of the two fake letters, which also
clearly show that he was aware that said letters were in the offing.
5. Disciplinary proceedings were initiated against the respondent
for breach of Rules 3(i), (ii) and (iii) of the 1965 Rules and an
explanation was called for from him as to why disciplinary
proceedings should not be initiated against him. The respondent
replied through his letter dated 24.07.2007. His explanation was
along the lines that he being a first generation scheduled caste officer,
some persons were inimical towards him. He suggested that these
persons had started creating problems for him, in particular, the then
incumbent Director General who was not favourable towards him.
Allegations were also made about the linkage of the said Director
General towards a certain organization. It was submitted that in his
entire 18 years of service, the petitioner had never committed any
irregularity and that while he was trying to get his regular continuous
posting and some of his friends and colleagues had promised him
help, which he never accepted.
6. Not being satisfied by the said explanation, the Disciplinary
Authority proceeded to issue to the respondent an Office
Memorandum on 30.04.2008 under Rule 14 of the 1965 Rules. The
Articles of Charge levelled against him read as under:
"... That Shri K. Asaiah, while functioning as
Director (News), RNU, All India Radio, Hyderabad
during the period 2005-2006 was transferred as Joint
Director, Directorate of Field Publicity, Guwahati vide
Ministry of I&B‟s Order No. 176/2005-IIS dated
12.12.2005. He relinquished the charge of the said post
on the forenoon of 07.07.2005 vide AIR, Hyderabad‟s
Order NO. Hyd.-21(3) KA/2006-S dated 07.07.2006.
But within 4 days he resumed the charge again at AIR
Hyderabad 10.07.2006 vide his certificate of transfer of
charge dated 10.07.2006 on the basis of two fake
communications, one stated to have been issued by
Secretary (I&B) i.e. D.O. letter dated 07.07.2006 and
the 2nd from Under Secretary (IIS), Ministry of I&B (a
telegram dated nil) to the effect that his file pertaining to
his request for retention at AIR, Hyderabad in capacity
as Director was under active consideration and that he
would be retained in the same capacity as Director
News All India Raio, till further orders. Shri K. Asaiah
is the ultimate beneficiary of the above said fake letters
and it is clear that he indulged himself in unfair
practices of maneuvering and manipulations in order to
get his transfer cancelled by any means to continue at
RNU, AIR, Hyderabad.
Shri K. Asaiah, Director has thereby disobeyed the
transfer orders issued by the Ministry and continued in
the same place on flimsy grounds and by misleading the
Station Director at All India Radio, Hyderabad.
By his above act, Shri K. Asaiah has failed to
maintain absolute integrity, shown lack of devotion to
duty and acted in a manner unbecoming of a Govt.
Servant, thereby violating Rule 3(I)(i), 3(I)(ii) and
3(I)(iii) of Central Civil Services (Conduct) Rules,
1964..."
7. The Memorandum called upon the respondent to state whether
he admitted or denied the charges levelled against him. By a letter
dated 19.05.2008, the respondent admitted the charges. His letter
reads as under:
".... Dated Guwahat, the 19th May 2008
Shri A.D. Roy,
Under Secretary to the Government of India,
Ministry of I & B,
„A‟ Wing, Shasri Bhawan,
New Delhi
Subject: Acknowledgement receipt of Office
Memorandum
Sir,
While acknowledging herewith receipt of Office
Memorandum issued vide your office letter No. C-
13011/27/2006-Vig. Dated 30th April 2008 through
which I have been charge sheeted for the anomalies of
two number fake letters.
Truly to speak, I submitted both the letters to the
SD, Hyderabad keeping in view that my friends will help
me in getting the final order from Ministry of I & B.
Due to my ignorance (sic) I committed this mistake for
giving the fake letters which now I am worried, and I
admit to the charges levelled against me.
With humble submission, I now fervently appeal
you to examine and excuse me for the mistake I did in
this respect
Yours faithfully,
Sd/-
(K. Asaiah)
Director
DFP: Guwahati.."
8. In view of the admission of charges, the Disciplinary Authority
sought the advice of the Central Vigilance Commission (CVC). By
OM dated 28.08.2008 the CVC advised the Disciplinary Authority to
impose a suitable major penalty commensurate with the gravity of the
proved charges. While the Disciplinary Authority accepted the
aforesaid advice and took a decision to impose major penalty upon
the respondent, it nevertheless also sought the advice of the UPSC.
By letter dated 10.06.2009, the UPSC opined that a penalty of
dismissal from service of the respondent would meet the ends of
justice since the respondent had changed his stand a number of times
before he finally accepted his guilt. Besides, the conduct of the
respondent raised questions about his integrity, reliability and
worthiness to continue in the post of Director.
9. However, the Disciplinary Authority was unable to agree with
the advice of the UPSC. It reasoned in the file notings:
This is regarding disciplinary proceedings against
Shri K. Asaiah, Director (News), RNU, AIR, Hyderabad
regarding his transfer on the basis of fake letters.
2. Shri K. Asaiah while heading the Regional News
Unit (RNU), AIR Hyderabad was t ransferred as Director,
DFP, Guwahati, Vide Ministry of I&B‟s Order No.
176/2005-IIS dated 12.12.2005. But he managed to
continue in the said post till May, 2006. DG AIR, News
Delhi vide their communication dated 30.05.2006 (issued
on 10.06.2006) ordered AIR Hyderabad to relieve Shri
Asaiah from the said post. Shri ASaiah relinquished the
charge on 07.07.2006. But within 4 days he resumed the
charge on 10.07.2006 on the basis of two fake
communications, one stated to have been issued by
Secretary (I&B) and similar letter of Secretary (I&B) with
endorsement to US (IIS) and 3rd is a telegram from US
(IIS), Ministry of I&B, to the effect that his file pertaining
to his application for his retention as Director (News),
AIR, Hyderabad was under active consideration and that
he should be retained in the same capacity till further
orders.
3. When the resumption of charge by Shri K. Asaiah,
as Director (news), AIR, Hydreabad on 10.07.2006,
without any directions from the Ministry, came to the
notice of the Ministry and further investigations revealed
existence of two fake communications mentioned above.
Shri S.K. Arora t he then, Secretary I&B vide his note dt.
2.8.06 confirmed that the communications were fake. IIS
section in this regard have requested the police authorities
to lodge an FIR but no confirmation has been received.
4. Simultaneously a fact finding enquiry was also
conducted into the matter by DG, NSD, AIR who submitted
his report. Since the misconduct of Shri Asaiah was Prime
Facie proved in the inquiry report the case was referred to
CVC for their advice in the matter. CVC vide their OM
dated 26/2/2008 advised for initiation of major penalty
proceedings.
5. In the light of the facts mentioned above and the
advice tendered thereon by CVC, Shri K. Asaiah was
chargsheeted for major penalty vide this Ministry‟s OM
No. C-13011/27/2006-Vig dated 2/4/2008 with the
approval of the disciplinary authority i.e. Hon‟ble IBM.
6. Shri K. Assiah vide his letter dated 19/5/2008
admitted the charge levelled against him and fervently
appealed to excuse him for his mistake. Shri Assaih in his
letter has stated that "truly to speak, I submitted both the
letters to SD, DFP, Hyderabad keeping in view that my
friends will help me in getting t he final order from
Ministry of I&B. Due to my ignorancy I committed this
mistakes for giving the fake letters which now I am
worried, and I admit the charges levelled against me".
7. Where the charge is admitted by the charged
employee, it is not necessary to hold an inquiry and the
disciplinary authority should immediately proceed to
assess the guilt of the employee and decide t he quantum of
punishment to meet the requirements of the case.
8. After the acceptance of the charge by Shri Assiah
the case was referred to UPSC with a tentative view to
impose one of the major penalties on Shri Assaih.
9. Now UPSC vide their letter dt. 10.6.2009 have
advised that ends of justice would be met in this case if the
penalty of dismissal from service is imposed on Shri
Assiah. UPSC have observed that the charged officer has
changed his statements a number of times till he finally
accepted the guilt. This raises question about his sense of
integrity and reliability and his worthiness to continue on
a responsible post like that of Director and therefore
dismissal from service is justified on him.
10. The recommendation of UPSC for imposing the
penalty of dismissal from service is unexpected and
surprising. The penalty does not seem to be commensurate
with the misconduct.
11. UPSC while examining the case have missed out on
the fact that Shri Assiah has tendered an unconditional
apology. This fact alone would have made sufficient
ground for non imposition the extreme major penalty on
him apart from the gravity of the misconduct in this case.
It has to be noted that a free and voluntary confession (as
in this case), is deserving of highest credit, because it is
presumed to flow from the highest sense of guilt. The
apology by Shri Assiah is sincere and not merely an
attempt to escape punishment.
12. The object and purpose of awarding punishment to
an employee is to put the employee to a disadvantage in
his service prospects and to deter him/ other employee
from reoccurrence of such acts thereof. However, the
penalty must be commensurate with the gravity of
misconduct. It should not be too lenient not too severe. As
severe punishment is likely cause frustration and
eventually, prove counter productive.
13. In deciding the quantum of punishment the
disciplinary authority should take into account the
circumstances in which the misconduct was conduct, the
modus operandi adopted, the motives operating on his
mind and the magnitude and character of the offence or
misconduct. The disciplinary authority should also
harmonise the various interest involved such as the
employee concerned and the members of his family and
length of service of an employee (because if an employee
has been serving the organization for a fairly long time, it
would normally indicate that he is a good employee. It
also indicates that he is interested in long term
employment and, therefore, can be worthy of future trust.
14. The question, however, is that what is the effect of
an apology on a case. The instruction regarding this
envisage that "an admission or apology should normally
lead to a lenient view provided that (i) employee has other
wise a good record of service (ii) misconduct was not
committed with malafide intention, (iii) he shows regret.
However, it must be remembered that an apology is an act
of contrition and unless it is offered at the earliest
opportunity and in good grace, it is short of penitence.
Even awarding less punishment to an employee who has
admitted the charge does not result in discrimination. The
disciplinary authority should keep all the above stated
factors in mind and exercise his discretion in selecting the
most appropriate penalty to meet the required situation.
The exercise of this discretion (of disciplinary authority), it
has been held is a matter of prudence and not of law.
15. In this case it is pertinent to point out that the time
of misconduct Shri Assiah was visible shaken by his family
problems and he was trying hard to get his transfer
cancelled. The motive behind committing such misconduct
was obviously to bargain some time so that he can get his
transfer orders from the hqrs. The modus operandi of the
misconduct was that of a naive and a person acting in
haste and utter frustration. The misconduct of Shri Assiah
does not have material implications. There are times in
once life when driven by circumstances a person can
resort to actions, which in his normal state of mind, would
have never thought of. Had Shri Assiah been in his peace
of mind, he would have easily known that his misconduct
will come forth sooner or later as he was a very senior
officer and the sqrs cannot be mislead about his place of
posting for too long. The innocence of Shri Asiah also
comes to forth by the fact that he has tendered an
unconditional apology at the first available opportunity
after the chargesheet was served on him. He would have
easily denied the charge and resorted to inquiry
proceedings etc in order to delay the pronouncement of
justice. Shri Assaiah is a long serving senior Govt.
Officer.
16. Punishment it is said must be geared to a social
goal, at once deterrent and reformatory.
17. The misconduct of Shri Assiah while taking into
account the facts and circumstances, in the light of the
unconditional apology tendered by him deserves a lenient
view in the case by the disciplinary authority. It is
therefore proposed to disagree with the recommendations
of the UPSC for imposition of dismissal of Shri K. Assaih.
It is further proposed that ends of justice would be met if a
major penalty of "Reduction to lower grade/ service/ post
or to a lower time scale may be imposed on Shri Assiah.".
18. Wherever there is disagreement with the
recommendation of UPSC the file is to be referred to
DOP&T for their advice in the matter.
19. The file is now submitted for kind approval of
disciplinary authority for the following.
i. To disagree with the advice of UPSC for imposition of
major penalty of dismissal of Shri Assiah.
ii. To impose a major penalty of "Reduction to lower
grade/ service/ post or to a lower time scale on Shri
Assiah.
iii. To refer the file to DOP&T for their advice in the
matter...."
10. Accordingly, the opinion of the Department of Personnel and
Training (DoPT) was sought. The latter examined the matter and
suggested that compulsory retirement would be the appropriate
punishment in the case. The DoPT‟s advise was based on the
following grounds:
".....(i) The date of retirement of the official is just 3 ½
years away - July 2014.
(ii) Dismissal from service will result in loss of pension.
At the age of 57-58, the prospect of retirement with no
pension appears to be a harsh one.
(ii) This is not a case of corruption where the official
has earned illegal gratification. He indulged in unfair
practices of manoeuvring and manipulations in order to
get his transfer order cancelled by any means to continue
at AIR, Hyderabad.
(iv) However, as UPSC has pointed out it is a question
of his integrity and reliability and his worthiness to
continue on a responsible post like that of Director and
hence compulsorily retiring the charged official may be
appropriate..."
11. the Disciplinary Authority passed the order dated 02.06.2011
the petitioner was compulsory retired. The said communication
records, inter alia, as under:
".... Whereas with the approval of disciplinary
authority the case was referred to DOP&T for their
advice in the matter proposing the penalty of
„Compulsory Retirement‟.
Whereas DOP&T vide their ID note dated
15.4.2011 has advised for imposition of penalty of
compulsory retirement of Shri K. Asaiah, in view of the
fact that Shri Asaiah will be reaching normal
superannuation age in July 2014 and the case against
him is not connected with taking any bribe.
And whereas the Disciplinary Authority, after
careful consideration of the relevant records, the facts
and circumstances of the case and the advice tendered
by DOP&T has come to the conclusion that DOP&T‟s
advice dated 15.04.2011 is appropriate and that the
same be accepted. Accordingly, the penalty of
„compulsory retirement‟ is imposed on Shri K. Asaiah,
Director, NSD, AIR, New Delhi..."
12. The respondent sought a review of the above order. The
Reviewing Authority concluded that since the respondent had already
admitted to the charges levelled against him through his letter dated
19.05.2008, no further inquiry was required and no further evidence
was brought forth by the respondent to substantiate his plea that the
fake letters were handed over by his juniors and ISS Officers and
News Reader and Translators.
13. The respondent impugned both, the order of compulsory
retirement and the order of the Reviewing Authority, through the
aforesaid OA which resulted in the present order. The Tribunal has
examined the respondent‟s letter of 19.05.2008 as well as findings
recorded by the Disciplinary Authority. The Tribunal reasoned that
the respondent‟s letter dated 19.05.2008 was not sufficient to
establish an unequivocal acceptance of guilt; that on the basis of
evidence it was difficult to hold that respondent himself was involved
in forgery of the letters; that there was indication that others were
involved in the matter. The respondent being the ultimate beneficiary
of the fake letters, had indulged in the said forgery and manipulation
was a mere assumption (M/s Siemens Ltd. Vs State of Maharashtra
& Ors. 2006 AIR SCW 6380). The Tribunal reasoned that mere
suspicion cannot be allowed to take place of proof even in domestic
inquiries (Union of India vs H.C. Goel, AIR 1964 SC 364 and Nand
Kishore vs State of Bihar, AIR 1978 SC 1277). Further the
memorandum was issued by a pre-determined mind. On the question
of the letter dated 19.05.2008, the Tribunal further observed that the
said letter has to be read along with the earlier communication of the
respondent dated 24.07.2007 wherein the respondent had alleged that
he was being trapped being a Scheduled Caste officer. Reference has
been made to the dictum of the Supreme Court in Jagdish Prasad
Saxena vs The State of Madhya Bharat, AIR 1961 SC 1070 on the
question of admission of guilt, and observed that the admission when
open to doubt, removal of government servant on the basis of alleged
admission without holding a formal inquiry would be bad in law.
Reference was also made to the judgment of the Madras High Court
in R. Govindarajan & Ors. vs The Presenting Officer & Ors., Writ
Petition No. 14116/1996 decided on 23.11.2009 that admissions when
ambiguous that cannot be accepted as admission. Reference was made
to the evidentiary value of the admissions as noticed in Kishori Lal v.
Chaltibai, AIR 1959 SC 504 to the effect that they were not
conclusive, unless they constitute estoppels and it was open to show
that the admission was mistaken or was untrue. Similarly, when
admissions were explained, they would not be conclusively binding
unless they amount to estoppels. Lastly, the admission was only a
piece of evidence to be depending upon circumstances in which the
same was made. Reliance was placed upon Nagubai Ammal v. B.
Shama Rao, 1956 SCR 451 and Rakesh Wadhawan v. Jagdamba
Industrial Corpn.,(2002) 5 SCC 440. The Disciplinary Authority has
also failed share the contents of the report. Hence the charge sheet
itself was null and void [Bimla Kanta Mukherjee vs State of West
Bengal, 1989 (11) CHN 35 and Subrata Bhattacharya vs Bharat
Process and Mechanical Engineers & Ors., 1984 (11) CHN 185].
14. The respondent had, unquestionably, in his reply vide letter
dated 24.07.2007 expressed apprehension that he was being targeted
by some persons who are inimical to him. He had also expressed
apprehension that the communications may have been forged by
others. This was the initial response. Thereafter, the respondent was
served with memorandum/charge sheet dated 30.04.2008 and a month
thereafter the respondent had written the letter dated 19.05.2008,
which is quoted above, wherein he, after reconsideration, had
accepted the allegations and charges against him. He had accepted
that he had submitted the two forged letters as his friends would help
him in getting the final orders from the Ministry. He accepted the
mistake in giving fake letters due to his ignorance. He was worried
and had admitted to the charges levelled against him.
15. On the aspect of whether the respondent‟s letter of 19.05.2008
is an admission of his guilt or of the charges levelled against him, we
find that the said communication is unambiguous, explicit and
affirmative. The said letter reads as under: "Due to my ignorancy
(sic) I committed this mistake for giving the fake letters which now I
am worried, and I admit to the charges levelled against me...". In the
preceding paragraph, the respondent admits that he had been charged
for anomalies of two number fake letters. Clearly, the respondent was
aware that he was admitting to the charges, regarding the two fake
letters. The respondent was a senior officer, we would accept was
aware and conscious of what he was writing and admitting. There is
no reference to any other prior letter, in the letter dated 24.07.2007.
The petitioner had about 10 months to ponder over his stand taken in
the earlier communication dated 24.07.2007. Indeed, the Tribunal has
recorded the advice of the UPSC in the impugned order, which reads
as under:
"The UPSC, vide its letter dated 10.6.2009 observed that
the applicant had changed his stand a number of times till
he finally accepted his guilt..."
16. After writing the letter dated 19th May, 2008, the respondent did
not at any time to revert back to his original position. He did not
withdraw or retract the letter dated 19.05.2008. He never wrote or
alleged that he was forced or compelled to write the letter. It was only
after the punishment of compulsory retirement was imposed that he
decided to challenge the proceedings. Such conduct would show that
the respondent had deliberately changed his stand subsequent to the
passing of the order of punishment. Had the respondent retracted or
withdrawn his letter dated 19th May, 2008, the Disciplinary Authority
could have conducted a detailed inquiry. The penalty order was
passed only on 2nd June, 2011. During this period from 19th May,
2008 to 2nd June, 2011 the respondent had maintained silence. He did
not communicate that his admission was wrong or that it should not
be accepted.
17. Thus we agree with the petitioners that the letter of 19.05.2008
was written after the respondent had given the matter some careful
consideration. The admission is clear. Therefore, the contention of
the learned counsel for the respondent that the letter of 19.05.2008
was issued in the context of the earlier letter and should be construed
accordingly, is untenable.
18. The Supreme Court in Awadh Kishore Das v. Ram Gopal and
Ors. (1979) 4 SCC 790 has held that "It is true that evidentiary
admissions are not conclusive proof of the facts admitted and may be
explained or shown to be wrong, but they do raise an estoppel and
shift the burden of proof on to the person making them or his
representative-in-interest. Unless shown or explained to be wrong,
they are an efficacious proof of the facts admitted." Later in
Divisional Manager, United India Insurance Co. Ltd. And Anr. Vs.
Samir Chandra Chaudhary (2005) 5 SCC 784, the Supreme Court
held:
"Admission is the best piece of evidence against the
persons making admission. As was observed by this
Court in Avadh Kishore Das v. Ram Gopal and Ors.
MANU/SC/0003/1978 : AIR1979SC861 in the
backdrop of Section 31 of Indian Evidence Act, 1872
(in short the 'Evidence Act') it is true that evidentiary
admissions are not conclusive proof of the facts
admitted and may be explained or shown to be wrong;
but they do raise an estoppel and shift the burden of
proof placing it on the person making the admission or
his representative-in-interest. Unless shown or
explained to be wrong, they are an efficacious proof of
the facts admitted. As observed by Phipson in his Law
of Evidence (1953 Edition, Para 678) as the weight of
an admission depends on the circumstances under
which it was made, these circumstances may always be
proved to impeach or enhance its credibility. The effect
of admission is that it shifts the onus on the person
admitting the fact on the principle that what a party
himself admits to be true may reasonably be presumed
to be so, and until the presumption is rebutted, the fact
admitted must be taken to be established. An admission
is the best evidence that an opposing party can rely
upon, and though not conclusive is decisive of matter,
unless successfully withdrawn or proved erroneous."
19. Since the admission of the respondent is unqualified and is the
best evidence against him, we are of the view that the aforesaid letter
of 19.05.2008 is a straightforward, clear and explicit admission of the
charges. It is not open to any other interpretation. Hence no further
investigations or proceedings were required. Indeed, a departmental
inquiry would have been an empty formality and an academic
exercise. The factum that the respondent was the beneficiary and that
the respondent did not withdraw or retract the letter are additional and
supporting factors, which affirm and awov the self incriminating
admission.
20. The power of judicial review under the Act, i.e. Administrative
Tribunals Act, 1985 would not be so exercised that it begins to
examine the correctness of the decision of the Disciplinary Authority.
The Tribunal does not sit in appellate jurisdiction and would not
extend itself to substitute its own decision instead of that of the
decision making authority. The exercise in judicial review is to
examine whether there was any error in the decision making process
and whether all relevant facts were considered i.e. whether the
decision is one which could shock the conscious of the Tribunal or
was in defiance of common sense, logic or moral standards. The ratio
of the Supreme Court in Chairman & Managing Director, United
Commercial Bank and Ors. vs. P.C. Kakkar (2003) 4 SCC 364 is a
guiding principle. Relevant parts read as under:
"The common thread running through in all these
decisions is that the Court should not interfere with the
administrator‟s decision unless it was illogical or
suffers from procedural impropriety or was shocking to
the conscience of the Court, in the sense that it was in
defiance or logic or moral standards. In view of what
has been stated in the Wednesbury's case the Court
would not go into the correctness of the choice made
by the administrator open to him and the Court should
not substitute its decision to that of the administrator.
The scope of judicial review is limited to the deficiency
in decision-making process and not the decision."
21. From the preceding discussion, we have seen that decision
making process did not suffer from any error, indeed the government
has been rather considerate in not awarding a harsh punishment to the
respondent i.e. his dismissal from service.
22. We also do not agree with the finding of the Tribunal that the
Disciplinary Authority had acted with a pre-determined mind in
issuing the charge-sheet or passing the penalty order. This factum is
not proved or established at all. The charge-sheet speaks for itself.
Before issuing the charge-sheet, a fact finding inquiry was held and
the respondent was asked to reply. In fact, the Disciplinary Authority
has, contrary to the opinion expressed by the Union Public Service
Commission, decided to take a lenient view. This shows the
objectivity and application of mind by the Disciplinary Authority.
23. In the aforesaid context we would note that the petitioner has
considered and dealt with the respondent‟s case with quite some
sympathy, compassion and recorded reason, in so far as it rejected the
advice of the UPSC of dismissal of the respondent from service;
keeping in view that he had only three and a half more years to
complete his tenure of service and dismissal would deprive him of
pensionary and other benefits. It is in these circumstances, that the
penalty of compulsory retirement was imposed instead of dismissal
from service as suggested by the UPSC. The said decision was fair
and needed no interference.
24. In view of the aforesaid discussion, we feel that the Tribunal
has misdirected itself with respect to the context in which the letter
dated 19.05.2008 was written. The impugned order cannot be
sustained and is, accordingly, set aside. The writ petition is allowed.
O.A. No. 2218/2012 will be treated as dismissed. No orders as to
costs.
NAJMI WAZIRI, J.
SANJIV KHANNA, J.
JUNE 03, 2016/kk
