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2002 DIGILAW 843 (PAT)

Madhusudan Pathak v. Union Of India

2002-08-05

R.N.PRASAD, RAVI S.DHAVAN

body2002
Judgment Ravi S.Dhavan and R.N.Prasad JJ. 1. Madhusudan Pathak had been selected for the post of Telecommunication Services by an examination held by the Union Public Service Commission in 1974 and was appointed as an Asst. Executive Engineer (Group A Service) in the civil wing on 16.2.1976 in the department of Posts and Telecommunication, Ministry of Communication, as it then was, Government of India, New Delhi. Later on, on 7.7.1979 he was promoted to the position of an Executive Engineer on ad hoc basis and this promotion was regularised through the departmental promotion committee with effect from 5.12.1981. The episode as a consequence of which the petitioner was compulsorily retired from the services of Government of India relates to his posting at Bombay where he was transferred as an Executive Engineer in the office of Superintending Engineer, Postal, Bombay. The petitioner had joined the Bombay office on 26th October, 1990. 2. On 12.4.1991 while the petitioner was proceeding from Bombay to his home town Patna, he was apprehended by the Central Bureau of Investigation at Victoria Terminus Railway station when it was found that he had in his possession a sum of Rs. 60,292/- as cash and a demand draft of Rs. 19,000/- in favour of his wife payable at Patna. This was the beginning of the departmental proceedings which ultimately terminated in compulsory retirement with an order dated 2.7.1997. 3. Initially the petitioner had been recommended for suspension as a consequence of contemplated departmental proceedings but he was never suspended. Consequent upon service of charge-sheet upon him, he filed a claim petition before the Central Administrative Tribunal, Bombay which was registered as O.A. No. 628/93. It appears that the proceedings had remained pending at Bombay for a considerable time and initially the Central Administrative Tribunal, Bombay had stayed the suspension order. Consequently at one stage the petitioner had been considered for promotion to a higher post which promotion had even been granted. This aspect is noticed in the order of the Central Administrative Tribunal, Bombay dated 12.2.1996 appended as Annexure-5 to the writ petition and reproduced below :- "Heard Mr. C. K. Manand, counsel for applicant Mr. V.S. Masurkar, counsel for respondents. After hearing both the counsel for considerable time and keeping in view B.M. of Department of Personnel dt. This aspect is noticed in the order of the Central Administrative Tribunal, Bombay dated 12.2.1996 appended as Annexure-5 to the writ petition and reproduced below :- "Heard Mr. C. K. Manand, counsel for applicant Mr. V.S. Masurkar, counsel for respondents. After hearing both the counsel for considerable time and keeping in view B.M. of Department of Personnel dt. 14th September 1992, if pending inquiry is not completed within a period of two years it is open for the department to consider the delinquent employee for promotion on adhoc basis. The applicant was issued with a chargesheet in March 1993 and the period of two years expires in March 1995. We enquired from the Ld. counsel for applicant whether any D.P.C. was held subsequent to March 1995 and he was not able to answer the same. In the circumstances we direct the respondents to consider the applicant for promotion as Superintending Engineer (Civil) on adhoc basis subsequent to March 1995 in terms of Rules. This may be done within a period of one month. Personal presence of officer from Department is dispensed. Adjourned to 8.4.95 for order on C.P.No. 92/95. Copy of this order be given to the parties." 4. Thereafter, the petitioner had been promoted to the post of Superintending Engineer (Civil) by an office order dated 7.6.1996 with the following conditions:- (i) The promotion is purely on adhoc basis and it will not confer on him any right for regular promotion or for seniority in the Grade. (ii) The Government reserve the right to cancel the ad-hoc promotion and revert him at any time to the grade from which he was promoted. (iii) The ad-hoc promotion will be reviewed on finalisation of the Seniority List in the Grade of Executive Engineer (Civil) or on issue of order in the disciplinary case pending against the officer. (iv) The above ad-hoc promotion is further subject to the outcome of O.A. No. 530/94 filed by Shri S.C. Srivastava before the CAT, Bombay Bench." An extract from the office order No. 19-28/93-CWG, Annexure-6. 5 Consequent upon an order of compulsory retirement being passed on 2.7.1997 the petitioner filed a transfer application before the Central Administrative Tribunal, New Delhi for transfer of the proceedings from Bombay to Patna. The transfer was permitted by the Chairman of the Tribunal. Consequently, the proceeding was registered as T.A.No. 1/2000 before the Central Administrative Tribunal, Patna. 6. 5 Consequent upon an order of compulsory retirement being passed on 2.7.1997 the petitioner filed a transfer application before the Central Administrative Tribunal, New Delhi for transfer of the proceedings from Bombay to Patna. The transfer was permitted by the Chairman of the Tribunal. Consequently, the proceeding was registered as T.A.No. 1/2000 before the Central Administrative Tribunal, Patna. 6. On the claim petition of the petitioner, challenging the order of compulsory retirement, the Tribunal has declined to interfere. Against this order petitioner filed a review petition on the ground that certain relevant material has not been noticed by the Tribunal and this material was germane to the issue. The review application was rejected on 7.8.2001. 7. Aggrieved by the order of the Central Administrative Tribunal dated 3.5.2001 in T.A. No. 1/2000, Shri Madhusudan S. Pathak V/s. The Union of India & anr., the present writ petition has been filed. 8. The contention on behalf of the petitioner is that the Court by a certiorari action be pleased to notice that the Tribunal has committed a manifest error in not taking into account a most relevant assessment on which the entire merit of the case was based, being the enquiry on the charge against the petitioner. This was the departmental enquiry. In the circumstances, no assessment on merit whether the claim of the petitioner or opposition of the respondent-Union of India could meet the standard of public justice unless the record of departmental proceeding is seen by the Central Administrative Tribunal. The contention is that Central Administrative Tribunal is a court of record in its structure. The record was there right before the Tribunal, but unfortunately it is contended the onus had been put on the applicant to produce it. 9. Before the Court a certified copy of the affidavit of the petitioner has been produced. This record has been certified by the Central Administrative Tribunal itself. It shows that an affidavit affirmed by the petitioner on 14.9.2000 duly served on the respondents, Union of India, and its counsel on the same day and entered on the record of the Tribunal with number 1086 was available on the record. The contention is that perhaps between the period when the order was reserved and ultimately when they were announced, the enquiry report which has been filed along with affidavit escaped notice. 10. The contention is that perhaps between the period when the order was reserved and ultimately when they were announced, the enquiry report which has been filed along with affidavit escaped notice. 10. Thus the issue before the Tribunal was examined without this crucial record of the departmental inquiry. The circumstances as noticed in paragraph 9 of the Tribunals order are thus :- "The report submitted by the Commissioner for departmental inquiry after conclusion of the departmental proceedings has not been produced either by the applicant or by respondents. It is the responsibility of the applicant to produce it." 11. The inquiry report is the record of the department. That a delinquent may be entitled to an inquiry report is another matter. The obligation to produce an enquiry report, in the circumstances, will always remain in the context of the present case on Union of India, should an occasion arise to produce it for a decision if the departmental enquiry or consequential action is challenged. The petitioner did not conceal the existence of the enquiry report and in fact had produced it. However, this cannot be made an issue in the present proceedings for the simple reason that this enquiry report was otherwise available to the Tribunal. The fact that it remained unnoticed is an error manifest on the record. 12. The matter of an inquiry report not having been noticed and available to the Tribunal was brought to the notice of the counsel of Union of India so that he may make his comments on it. Learned counsel for the Union of India says that he is hardly in a position to make submission on this as an essential document has escaped notice of the Tribunal. 13. Here-in-after it will not be appropriate for this Court to make any observation on the merit of the case. Clearly, if an inquiry report has not been seen by the Central Administrative Tribunal it is a manifest error and this error goes to the root of the matter. Logically, the matter has to be remitted to the Central Administrative Tribunal for a decision afresh by taking into account the departmental proceeding not noticed by the Tribunal but otherwise available on the record. Thus, the order of the Central Administrative Tribunal dated 3.5.2001 of Registration No.T.A.1 of 2000, Shri Madhusudan S. Pathak V/s. The Union of India & anr.; is quashed. 14. Thus, the order of the Central Administrative Tribunal dated 3.5.2001 of Registration No.T.A.1 of 2000, Shri Madhusudan S. Pathak V/s. The Union of India & anr.; is quashed. 14. As the matter before the Central Administrative Tribunal (Bombay) had initially been filed in 1993, and the fact that inquiry report escaped the notice of the Tribunal, the High Court makes a request to the latter that this matter be considered as expeditiously as possible preferably in the next three months. 15. The petition is allowed with costs.