Jharkhand High Court
Union Of India Through General Manager vs Meraj Alam Ansari S/O Late Kasim Ansari on 12 November, 2024
Author: S. N. Pathak
Bench: S.N. Pathak, Navneet Kumar
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S). No. 6710 of 2019
1. Union of India through General Manager, East Central Railway, PO & PS
Hajipur, District - Vaishali (Bihar).
2. The Divisional Railway Manager, East Central Railway, PO & PS Dhanbad,
District - Dhanbad (Jharkhand).
3. The Senior Divisional Electrical Engineer /TRD, East Central Railway, PO
& PS - Dhanbad, District - Dhanbad (Jharkhand).
4. The Divisional Electrical Engineer / TRD, East Central Railway, PO & PS -
Dhanbad, District - Dhanbad (Jharkhand).
5. The Assistant Electrical Engineer /TRD, East Central Railway, PO & PS -
Dhanbad, District- Dhanbad (Jharkhand).
... Petitioners
Versus
Meraj Alam Ansari S/o late Kasim Ansari, R/o Baltharia, PO- Nagari, PS -
Nimiyaghat, District - Giridih, Jharkhand, presently residing at Railway QR.
No. 258 /B, Sick Line Colony, Gomoh, PO - Gomoh, PS- Hariharpur,
District - Dhanbad (Jharkhand), PIN Code - 828401.
... Respondent
CORAM: HON'BLE DR. JUSTICE S.N. PATHAK
HON'BLE MR. JUSTICE NAVNEET KUMAR
----
For the Petitioners : Mr. Anil Kumar, Sr. Advocate, ASGI
: Ms. Niki Sinha, CGC
For the Respondent : Mr. Romit Kumar, Advocate
: Mr. Arun Kumar, Advocate
: Mr. Indra Bhushan Pd. Sinha, Advocate
---
28/12th November 2024
1. The instant writ application has been filed by the Petitioner - Union of
India with a prayer for quashing and setting aside the order dated
30.11.2018 (Annexure - 8) passed in OA / 051/ 00058 /2017 and the
order dated 31.05.2019 (Annexure -9) passed in RA/ 051/ 00028/ 2019
by the learned Central Administrative Tribunal (CAT), Patna bench,
Circuit Bench at Ranchi whereby orders of disciplinary authority dated
19.09.2014, Appellate Authority dated 12.10.2015 and Revisional
Authority's order dated 24.11.2016 have been quashed and also the
Revision filed by the petitioners / respondent has been dismissed on the
ground of limitation, when the respondent /applicant has obtained the
order dated 30.11.2018 (Annexure -8) on the basis of forged and
fabricated enquiry report.
Factual matrix
2. The respondent / applicant was working in the petitioner's organization
as Chowkidar and on the ground of unauthorized absence from the duty
for the period from 03.08.2011 to 07.01.2013, disciplinary proceeding
was initiated against him. Resultantly, an Enquiry Officer was appointed
to enquire into the matter. After following the procedure, the Enquiry
Officer concluded that the petitioner / applicant was absent from the duty
due to his mental illness and he was getting his treatment done, therefore
the absence from duty was not intentional. The report of the Enquiry
Officer confirmed that the petitioner / applicant had submitted his
medical certificates for the period from 05.08.2011 to 06.01.2013
certifying that he was suffering from mental illness. The Disciplinary
Authority without assigning any valid and cogent reason, disagreed with
the findings of the Enquiry Officer and imposed penalty of removal from
service vide order dated 19.09.2014.
3. On appeal preferred by the petitioner / applicant, the said penalty order
passed by the Disciplinary Authority was affirmed and revision
application was also preferred which met with the same fate vide order
dated 24.11.2016 thereafter, the orders were challenged in OA/ 051/
00058 /217.
4. The Central Administrative Tribunal (CAT) after hearing the learned
counsel for the parties, allowed the original application with a direction
to reinstate the petitioner /applicant with all consequential benefits save
and except the back-wages.
5. Aggrieved by the said order, the Union of India through General
Manager, East Central Railway, has preferred this writ petition
challenging the order passed by the Central Administrative Tribunal
(CAT).
6. Learned Senior Counsel for the petitioner Mr. Anil Kumar vociferously
argues that order of the Central Administrative Tribunal (CAT) is not
tenable in the eyes of law, justifying the orders passed by the
Disciplinary Authority, Appellate Authority as well as Revisional
Authority. It has been argued that the petitioner was dismissed from
services on the ground of unauthorized absence. On the basis of fake
certificates, the petitioner manipulated the enquiry report and obtained
the order in his favour. He further submits that there was no any
procedural illegalities the departmental proceedings and the order is of in
accordance with law as well as fully justified. Learned counsel submits
that an in-disciplined person cannot be allowed to continue in the
services.
7. Learned counsel submits that neither any of the documents were
submitted by the petitioner justifying his absence on medical grounds
although two different certificates submitted by the petitioner / applicant
shows different dates of treatment. It was also argued that petitioner /
applicant was on unauthorized absence from the duty since 03.08.2011
without giving any information to the office the SSE/ ESI /GMI. The
orders passed by the Disciplinary Authority has been affirmed by the
Appellate Authority as well as Revisional Authority which requires no
interference.
8. Learned Senior Counsel further argues that two types of enquiry reports
were obtained. The legality and proprietary of the enquiry report is
doubted and the same is under cloud. On this pretext itself, the impugned
order is fit to be quashed and set aside.
9. Learned counsel for the respondent by vehemently opposing the
contention of the learned senior counsel emphatically argues that the
impugned order is totally justified. The Central Administrative Tribunal
(CAT) in the original application while passing the order has taken care
of the procedural illegalities and, thereafter, has quashed the order of
dismissal. Learned counsel submits that in total disregard to the settled
principles of law, the Disciplinary Authority without differing with the
enquiry report and assigning cogent reasons for such deviation and also
by not issuing second show cause, has imposed major penalty which is
not tenable in the eyes of law. He further submits that the Appellate
Authority and Revisional Authority have emphatically affirmed the order
of Disciplinary Authority in a most cryptic way which is non-speaking,
capricious, mechanical and, as such, fit to be quashed and set aside.
10. Learned counsel further argues that for the first time before this Hon'ble
Court a plea of fraudauntly obtaining the enquiry report in favour of the
petitioner / applicant has been raised by the learned senior counsel which
is impermissible in the eyes of law. Nowhere by the respondent before
the Central Administrative Tribunal CAT) when the original application
was filed, this plea has been taken neither any chit of paper was brought
showing a different enquiry report. The respondent- authorities who are
petitioner in this case have tried to dupe this Court by making bold
submissions. There was full of procedural illegalities and as such orders
of the disciplinary authority, appellate authority and revisional authority
have no legs to stand and the same are sustainable in the eyes of law and
rightly the said orders have been set aside by a Central Administrative
Tribunal (CAT) which needs no interference.
11. Having heard the learned counsel for the parties at length, this Court is
of the considered view that case of the original applicant / respondent
before the Central Administrative Tribunal (CAT) needs consideration. It
is crystal clear that the respondent-authorities, railways have tried to
justify their stand in a most cryptic, capricious and mechanical manner.
In a disciplinary proceeding, the authorities are bound to follow the
procedure which is the mandatory requirement. In the instant case, the
Disciplinary Authority has disagreed with the findings of the Enquiry
Officer.
12. It is always open for the Disciplinary Authority to defer with the enquiry
report but before differing with the enquiry report and for imposing
major punishment, the petitioner / applicant is required to be noticed and
a show cause must be issued assigning reasons as to why the Disciplinary
Authority has differed with the enquiry report.
13. After obtaining the reply to show cause, a second show cause notice be
issued seeking reply of the delinquent for imposing major punishment. In
absence of all these procedures, the order passed by the Disciplinary
Authority is not tenable and, as such, fit to be quashed and set aside.
14. The aforesaid view of this Court finds strength from the celebrated
judgment the Hon'ble Apex Court in case of Punjab National Bank &
Ors. v. Kunj Behari Misra, reported in (1998) 7 SCC 84, relevant paras
of which is reproduced herein below:
"17. These observations are clearly in tune with the
observations in Bimal Kumar Pandit case quoted earlier and
would be applicable at the first stage itself. The aforesaid
passages clearly bring out the necessity of the authority which
is to finally record an adverse finding to give a hearing to the
delinquent officer. If the Inquiry officer had given an adverse
finding, as per Karunakar case the first stage required an
opportunity to be given to the employee to represent to the
disciplinary authority, even when an earlier opportunity had
been granted to them by the Inquiry officer. It will not stand to
reason that when the finding in favour of the delinquent officers
is proposed to be overturned by the disciplinary authority then
no opportunity should be granted. The first stage of the Inquiry
is not completed till the disciplinary authority has recorded its
findings. The principles of natural justice would demand that
the authority which proposes to decide against the delinquent
officer must give him a hearing. When the enquiring officer
holds the charges to be proved, then that report has to be given
to the delinquent officer who can make a representation before
the disciplinary authority takes further action which may be
prejudicial to the delinquent officer. When, like in the present
case, the Inquiry report is in favour of the delinquent officer but
the disciplinary authority proposes to differ with such
conclusions, then that authority which is deciding against the
delinquent officer must give him an opportunity of being heard
for otherwise he would be condemned unheard. In departmental
proceedings, what is of ultimate importance is the finding of the
disciplinary authority.
.........
19. The result of the aforesaid discussion would be that the
principles of natural justice have to be read into Regulation
7(2). As a result thereof, whenever the disciplinary authority
disagrees with the Inquiry authority on any article of charge,
then before it records its own findings on such charge, it must
record its tentative reasons for such disagreement and give to
the delinquent officer an opportunity to represent before it
records its findings. The report of the Inquiry officer containing
its findings will have to be conveyed and the delinquent officer
will have an opportunity to persuade the disciplinary authority
to accept the favourable conclusion of the Inquiry officer. The
principles of natural justice, as we have already observed,
require the authority which has to take a final decision and can
impose a penalty, to give an opportunity to the officer charged
of misconduct to file a representation before the disciplinary
authority records its findings on the charges framed against the
officer."
15. The original applicant was dismissed on the ground of unauthorized
absence. The Enquiry Officer after considering every aspect of the matter
has returned a finding that unauthorized absence was neither intentional
nor deliberate and it happened due to compelling circumstances.
Admittedly, original applicant was suffering from mental illness during
the period in question. He had also produced medical certificates which
were duly considered by the Enquiry Officer. A wrong averment has
been made by the respondent-railway, petitioner herein that no document
was submitted. The arguments before the Central Administrative
Tribunal (CAT) is totally fallacious and not based on any records.
16. The Hon'ble Apex Court in the case of Krishnakant B. Parmar V.
Union of India reported in [(2012) 3 SCC 178] has held as under:-
"18. In a departmental proceeding, if allegation of unauthorised
absence from duty is made, the disciplinary authority is required to
prove that the absence is wilful, in the absence of such finding, the
absence will not amount to misconduct.
19. In the present case the inquiry officer on appreciation of
evidence though held that the appellant was unauthorisedly absent
from duty but failed to hold that the absence was wilful; the
disciplinary authority as also the appellate authority, failed to
appreciate the same and wrongly held the appellant guilty.
20. The question relating to jurisdiction of the court in judicial
review in a departmental proceeding fell for consideration before
this Court in M.V. Bijlani v. Union of India [(2006) 5 SCC
88 : 2006 SCC (L&S) 919] wherein this Court held : (SCC p. 95,
para 25)
"25. It is true that the jurisdiction of the court in judicial review is
limited. Disciplinary proceedings, however, being quasi-criminal in
nature, there should be some evidence to prove the charge.
Although the charges in a departmental proceeding are not
required to be proved like a criminal trial i.e. beyond all
reasonable doubt, we cannot lose sight of the fact that the enquiry
officer performs a quasi-judicial function, who upon analysing the
documents must arrive at a conclusion that there had been a
preponderance of probability to prove the charges on the basis of
materials on record. While doing so, he cannot take into
consideration any irrelevant fact. He cannot refuse to consider the
relevant facts. He cannot shift the burden of proof. He cannot reject
the relevant testimony of the witnesses only on the basis of surmises
and conjectures. He cannot enquire into the allegations with which
the delinquent officer had not been charged with."
In the instant case the authorities have accepted that absence of
petitioner was neither deliberate nor willful rather it happened due
to compelling circumstances as petitioner met with an accident and
was unable to perform his duties.
17. It has been rightly pointed out by the Central Administrative Tribunal
(CAT) that orders passed by the Appellate Authority and Revisional
Authority are non-speaking, capricious, cryptic and mechanical. The
Appellate Authority while affirming the order has not assigned any
reasons. The orders of the Disciplinary Authority cannot be affirmed
mechanically and an independent finding has to be derived by the
Appellate Authority and, thereafter, the affirmation on cogent grounds
has to be made in absence of the same, the orders can be comfortably
said to be mechanical and cryptic order. This Court is in full agreement
with the orders passed by the Central Administrative Tribunal (CAT).
18. The Hon'ble Apex as well as this Court in plethora of judgments has
held that when the order of punishment has been affirmed upto the
Appellate Authority, the Hon'ble Court sitting under Article 226 of the
Constitution of India should refrain itself from reappraising the evidences
led in the departmental proceedings
The Hon'ble Apex Court in the case of B.C. Chaturvedi Vs.
Union of India & Ors., reported in (1995) 6 SCC 749 has held
thus:
"The High Court does not act as appellant
authority. Its jurisdiction is circumscribed by limits of
judicial review to correct errors of law or procedural
errors leading to manifest injustice or violation of
principles of natural justice. Judicial review is not akin
to the decision of a case on merit as an appellate
authority."
(ii) Insufficiency of materials cannot be a ground to
annul the findings of the Enquiry Officer neither can a
substituted view be taken in place of Enquiry
officer/disciplinary authority in cases of departmental
proceeding.
19. Issue of forged and fabricated enquiry report as well as certificates at
this juncture has been raised which are not acceptable to this Court as
neither of those documents have ever been produced before the Original
Court nor any discussion on this point is there in the orders of the
Disciplinary Authority or the Appellate Authority or Revisional
Authority and, as such, the same cannot be entertained. The order of the
Central Administrative Tribunal (CAT) is hereby affirmed. The order
passed by the Disciplinary Authority and Appellate Authority and
Revisional Authority have already been quashed by the Central
Administrative Tribunal (CAT) and, as such, the order passed by the
CAT requires no interference and is affirmed.
20. However, the impugned order passed by the Central Administrative
Tribunal (CAT) is modified to the extent that the original applicant
/respondent before the Central Administrative Tribunal (CAT), is entitled
for 25% back-wages. The said amount shall be calculated and paid to the
original applicant / respondent along with other consequential benefits.
The writ petition is devoid of any merit and the same is hereby
dismissed. No orders as to cost.
21. Records of the original court be returned forthwith.
(Dr. S. N. Pathak, J.)
(Navneet Kumar, J.)
Aditi
