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2003 DIGILAW 24 (JK)

Kanayal Lal v. Union Of India

2003-02-26

B.C.PATEL, S.K.GUPTA

body2003
S.K. Gupta, J. 1. Petitioner, while working as SA-I with effect from 29th September 1986, had put up a noting to his G.E. stating that M/s Haji Abdul Kabir Sumji, Contractor, was banned for the issue of tender for two years by C.E., Srinagar Zone. It was, however, found later on that there was no such ban imposed on the said Contractor. An enquiry was held and found that it was a wrong noting submitted by the petitioner wilfully. The Disciplinary Authority also held that the petitioner also did not even dispute having putting up of the said noting. Another charge against the petitioner is that he had put up noting regarding another Contractor, M/s Surjit Singh & Sons for the job of dismantling and mentioned that provisional sum for dismantling work is minus 50% even though the opening officers had clearly indicated the said percentage as minus 5% and this was recorded in words also by the officers. The petitioner in his noting to the G.E. had recommended that M/s Surjit Singh & Sons had given lowest tender for the job. But, after discussion with the G.E. on 25th August, 1988, it was found that said Contractor had not given the lowest tender, but the petitioner informed the C.E. that M/s Mohd. Saleem & Co. had given the lowest tender. This charge was also held proved in the enquiry. A vain attempt was, however, made by the petitioner by saying that the original noting having not been produced, this charge cannot be held proved against him. This, however, did not merit acceptance with the Disciplinary Authority and Revisionary Authority and penalty was imposed upon the petitioner, i.e., reduction of pay by four stages from Rs. 2900 to Rs. 2600 per month in the time-scale of Rs. 1640-60-2600-EB-75-2900 for a period of four years with immediate effect by order dated 23.2.1993. It was futher ordered in the order of penalty imposed that the petitioner will not earn increments or pay during the above reduction and that on expiry of his period, the reduction will have the effect of postponing his future increments of pay. 1640-60-2600-EB-75-2900 for a period of four years with immediate effect by order dated 23.2.1993. It was futher ordered in the order of penalty imposed that the petitioner will not earn increments or pay during the above reduction and that on expiry of his period, the reduction will have the effect of postponing his future increments of pay. The orders passed by the Appellate Authority and the Revisionary Authority, however, came to be challenged by the petitioner before the Central Administrative Tribunal, Chandigarh at Circuit Bench, Jammu in O.A., but the same was dismissed in holding that the impugned orders are very reasoned orders and the punishment imposed in no way is on the higher side vide its judgment and order dated 14th July, 2000, which became the subject-matter of challenge in this writ petition. 2. The case of the petitioner as projected in the petition is that his Disciplinary Authority is Engineer-in-Chief being Appointing Authority, the charges were required to be framed by the Disciplinary Authority and not by a Delegated Authority. The petitioner further claims that the charge-sheet could not be issued by an Authority lower than the Disciplinary Authority and, as such, all the proceedings against the petitioner having been vitiated, deserves to be quashed. Petitioner further pleaded that the noting of the petitioner dt. 4.2.1988 that constituted the basis for the charge-sheet, if read as a whole, will be in no way misleading. As regards the second charge, the department could not produce any document to prove during the course of the enquiry. That in the absence of the evidence, charges could not be held to be proved as per the Inquiry Report. That it has further been wrongly held by the Tribunal that it is not a case of no evidence. That when the petitioner was admonished and administered non-recordable warning by the G.E. and his ACRs were also spoiled for the year 1988-89, no charge-sheet could be issued to him on penalty on the same grounds of alleged misconduct. 3. The stand of the respondents explicitly delineated in their written reply is that Chief Engineer, Northern Command, is the competent Disciplinary Authority in the case of the petitioner. Directions were issued to the Zonal Chief Engineer to issue the charge-sheet. 3. The stand of the respondents explicitly delineated in their written reply is that Chief Engineer, Northern Command, is the competent Disciplinary Authority in the case of the petitioner. Directions were issued to the Zonal Chief Engineer to issue the charge-sheet. As per Delegation Order dated 16th August 1979 of Ministry of Defence, the Chief Engineer, Srinagar Zone is the Disciplinary Authority competent to issue the charge-sheet. It was further pleaded that even Officer subordinate to the Disciplinary Authority/Appointing Authority can initiate departmental proceedings and issue a charge-sheet. That it is only the penalty, which cannot be imposed by an Authority lower than the Disciplinary Authority. That after the enquiry, both the charges were held to have been proved by the Inquiry Officer in his findings and the Disciplinary Authority found it factually correct and concurred with the said findings and imposed the impugned penalty vide order dated 23rd February 1993. 4. We have heard the learned counsel for the respective parties, in extenso and also perused and examined he material and documents on record meticulously. 5. Insofar as initiation of Enquiry by an Officer subordinate to the Appointing/Disciplinary Authority is concerned, it is well settled now that it is unobjectionable. The initiation can be by an Officer subordinate to the Appointing Authority. Only the imposition of penalty shall not be by an Authority subordinate to the Appointing Authority. Accordingly, it is held that this was not a permissible ground for quashing the charges by the Tribunal. 6. It was next contended by the peitioners advocate that when warning was given and adverse entries were made in the ACR of the petitioner by the Officers for his misconduct, holding of Disciplinary proceedings and passing of impugned orders amounted to double jeopardy. We have examined this contention and found it to be without merit. Adverse remarks in the ACR and giving a warning cannot be termed as statutory punishment. Misconduct envisages disciplinary enquiry followed by imposition of penalty under the relevant rules. 7. Another limb of argument put-froth by the learned advocate appearing for the petitioner is that the finding of Enquiry Officer that the charges stand proved, is without cogent, sufficent and satisfactory evidence and thus cannot be made basis for imposition of penalty. The argument of Mr. Misconduct envisages disciplinary enquiry followed by imposition of penalty under the relevant rules. 7. Another limb of argument put-froth by the learned advocate appearing for the petitioner is that the finding of Enquiry Officer that the charges stand proved, is without cogent, sufficent and satisfactory evidence and thus cannot be made basis for imposition of penalty. The argument of Mr. Rohit Kapoor, learned counsel for Respondents, is that the Inquiry Officer has come to a definite conclusion that the petitioner has put up a wrong noting to his G.E. stating that M/s Haji Abdul Kabir Sumji was banned for issue of tenders for two years by C.E., Srinagar Zone, while there was no such ban imposed on the Contractor, also in respect of second charge that he had put up noting regarding another Contractor, M/s Surjit Singh & Sons for the job of dismantling and that the provisional sum for dismantling work is minus 50% though opening officer indicated clearly as minus 5% and recorded in words also. Inquiry Officer further concluded that petitioner in his noting recommended to G.E. that M/s Surjit Singh & Sons had given lowest tender for the job, which later on was found on 25.8.1988 that Contractor had not given the lowest tender but petitioner informed the C.E. that M/s Mohd. Saleem & Co. had given the lowest tender which amounted to gross misconduct and unbecoming of Government servant. There was sufficient evidence available to record finding against the petitioner. 8. The impugned orders recorded by the Disciplinary Authority, Appellate Authority and Revisionary Authority are based on the appreciation of evidence and is not contrary to the conclusion recorded by the Inquiry Officer. So, it cannot be said that the orders impugned are based on no evidence or reason. 9. So far as the truth and correctness of the charges is concerned, it was not a matter for the Tribunal to go into. Even when the matter comes to the Tribunal after the imposition of punishment, it has no jurisdiction to go into truth of allegations/charges except in case where they are based on no evidence, i.e., where they are perverse. The jurisdiction of the Tribunal is akin to that of the High Court under Article 226 of the Constitution. It is power of judicial review. It only examines the procedural correctness of the decision making process. 10. The jurisdiction of the Tribunal is akin to that of the High Court under Article 226 of the Constitution. It is power of judicial review. It only examines the procedural correctness of the decision making process. 10. It is settled law that the scope of judicial review in such matter is limited as held in Indian Oil Corporation Ltd. v. Ashok Kumar Arora, (1997) 3 SCC 72, which reads as under: At the outset, it needs to be mentioned that the High Court in such cases of deparmental enquiries and the findings recorded therein does not exercise the powers of appellate court/authority. The jurisdiction of the High Court in such cases is very limited for instance where it is found that the domestic enquiry is vitiated because of non-observance of principles of natural jusice, denial of reasonable opportunity, findings are based on no evidence, and/or the punishment is totally disproportionate to the proved misconduct of any employee. There is a catena of judgments of this Court which had settled the law on this topic and it is not necessry to refer to all these decisions.� 11. We are, therefore, of the opinion that it is neither a case of no evidence, nor the punishment imposed was disproportionate to the proved misconduct in the finding of Inquiry Officer, both on oral and documentary evidence, concurred with the Disciplinary Authority, Appellate Authority and Revisionary Authority in their well-reasoned orders. That being so, the orders impugned do not suffer from any infirmity. 12. In view of the above, we do not find any merit in this petition, which is accordingly dismissed.