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2003 DIGILAW 891 (PAT)

Brij Kishore Yadav v. Union Of India

2003-08-25

CHANDRAMAULI KR.PRASAD

body2003
Judgment Chandramauli Kr.Prasad, J. 1. This application has been filed for quashing the order dated 14.2.2000 (Annexure 7) whereby the petitioner has been visited with the penalty of dismissal from service. Further prayer made by the petitioner is to quash an undated order of October 2000 (Annexure-8) whereby the appeal preferred by him against the order of the disciplinary authority has been dismissed. 2. Shorn of unnecessary details, facts giving rise to the present application are that the petitioner, at the relevant time, was employed as Lance Nayak in the Central Reserve Police Force and by order dated 4.12.1999, a departmental proceeding was initiated against him. Charge against him was that while functioning as Lance Nayak (General Duty) he had committed an act of misconduct by overstayal after leave with effect from 10.5.1999 to 2.10.1999 he. for 146 days without any prior permission/ sanction of the authority. According to the charge, the aforesaid allegation constitutes an offence under section 11(1) of the Central Reserve Police Force Act, 1949 read with Rule 27 of the Central Reserve Police Force Rules, 1915 (sic1955?). In the departmental proceeding, petitioner did not deny the fact of over-stayal but his plea was that on account of the fact that he was suffering from jaundice i.e. situation beyond control, he had no option than to stay at his home. The enquiry officer considered the plea of the petitioner and finding that the prescriptions filed by the petitioner for treatment were from a private medical practitioner and not from any Primary Health Centre or the District Hospital, did not accept the plea of the petitioner and held him guilty of the misconduct. Petitioner was provided with a copy of the enquiry report with liberty to file show cause and on consideration of the same, the disciplinary authority, by the impugned order dated 14.2.2000, inflicted the penalty of dismissal from service and the appeal preferred by him against the said order was also rejected by an undated order of October, 2000 (Annexure-8). 3. It is an admitted position that a copy of the enquiry report was made available to the petitioner and he was given opportunity to submit reply/representation on the report of the enquiry officer but was not given any opportunity to show cause against the proposed punishment. 4. Mr. 3. It is an admitted position that a copy of the enquiry report was made available to the petitioner and he was given opportunity to submit reply/representation on the report of the enquiry officer but was not given any opportunity to show cause against the proposed punishment. 4. Mr. Amresh Kumar Singh, with all the vehements at his command, submits that failure on the part of the respondents to give notice to the petitioner to show cause against the proposed punishment, vitiates the impugned order. He vehemently contends that the amendment brought about in the first proviso to Article 311 (2) of the Constitution of India by the Constitution (Forty Second Amendment) Act. 1976 had, in sum and substance, brought about no change. He points out that there are two stages in the departmental enquiry, first, the stage prior to the submission of the enquiry report and the second stage starts with making available the copy of the enquiry report and giving show cause notice against the proposed punishment and the ultimate decision. Mr. Singh contends that one of the important requirement of the second stage of the disciplinary proceeding is of giving show-cause notice against the proposed punishment and failure thereof shall invalidate the impugned order. In support of his submission Mr. Singh has placed reliance on a decision of the Constitution Bench of the Supreme Court in the case of Khem Chand V/s. Union of India and others reported in AIR 1958 SC 300 . He placed reliance on the following passage from para-22 of the judgment: "22.It is on the facts quite clear that when Shri J.B.Tandon concluded his enquiry and definitely found the appellant guilty of practically all the charges he for the first time suggested that the punishment of dismissal should be the proper form of punishment in this case. Shri J.B.Tandon was not, however, the competent authority to dismiss the appellant and, therefore, he could only make a report to the Deputy Commissioner who was the person competent to dismiss the appellant. When the Deputy Commissioner accepted the report and confirmed the opinion that the punishment of dismissal should be inflicted on the appellant, it was on that stage being reached that the appellant was entitled to have further opportunity given to him to show cause why that particular punishment should not be inflicted on him. When the Deputy Commissioner accepted the report and confirmed the opinion that the punishment of dismissal should be inflicted on the appellant, it was on that stage being reached that the appellant was entitled to have further opportunity given to him to show cause why that particular punishment should not be inflicted on him. There is, therefore, no getting away from the fact that Art. 311 (2) has not been fully complied with and the appellant has not had the benefit of all the constitutional protection and accordingly his dismissal cannot be supported." 5. Strong reliance has been placed by Mr. Singh on a decision of the Supreme Court in the case of Union of India and others V/s. Mohd. Ramzan Khan reported in AIR 1991 SC 471 to emphasise that the amendment brought about by the Constitution (Forty-Second) Amendment Act, 1976 has not made any difference at all. My attention has been drawn to para-15 of the judgment which reads as follows: "15.Deletion of the second opportunity from the scheme of Art. 311 (2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the inquiry in Art. 311 (2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the enquiry officer holding that the charges or some of the charges are established and holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Inquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary and to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice applicable to such an inquiry are not affected by the 42nd amendment. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. We, therefore, come to the conclusion that supply of a copy of the inquiry report along with recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice and the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-Second Amendment has not brought about any change in this position." 6. Yet another decision on which Mr. Singh has placed reliance is the judgment of the Supreme Court in the case of Managing Director, ECIL, Hyderabad and ors. V/s. B. Karunakar & Ors, (1993) 4 S.C.C. 727 and my attention has been drawn to para-27 of the judgment which reads as follows: "27.It will thus be seen that where the enquiry officer is other than the disciplinary authority, the disciplinary proceedings break into two stages. The first stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, enquiry officers report and the delinquent employees reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the basis of its conclusions. If the disciplinary authority decides to drop the disciplinary proceedings, the second stage is not even reached. The employees right to receive the report is thus, a part of the reasonable opportunity of defending himself in the first stage of the inquiry. If this right is denied to him, he is in effect denied the right to defend himself and to prove his innocence in the disciplinary proceeding." 7. Reliance has also been placed on a decision of the Madras High Court in the case of the Principal, St. Sebastian Industrial Training Institute, Madras and another V/s. Principal, Labour Court, Madras and another (W.P. No. 11046 of 1991 and other cases) disposed of on 6th of December, 1999 and my attention has been drawn to the following passage from the said judgment: "Under such circumstances, a full-fledged enquiry into such specific allegations framing the charges, appointing an Enquiry Officer and conducting the enquiry affording sufficient opportunities for the employee to put up his defence and to be heard in full and ultimately according to the finding arrived at by the Enquiry Officer, the disciplinary authority should have properly taken the decision in terms of the findings of the Enquiry officer. But, none of these procedures were followed in this case. But, none of these procedures were followed in this case. This is the best case wherein it could be stated that no opportunity was afforded for the delinquent putting him on notice calling for his explanation thereby and on receipt of any such explanation offered on his part considering the same and if they are not satisfactory rejecting the same for reasons assigned and then the disciplinary authority framing the charges specifying the delinquencies committed by the second respondent and serving the same on him and then appointing an impartial officer as the enquiry officer to hold a full-fledged enquiry affording the delinquent with sufficient and reasonable opportunity to be heard in full and on the basis of the enquiry finding if any of the charges or all or some of them come to be proved, again specifying the proved charges issuing further show cause notice thereby specifying the proposed punishment and if the explanations are not satisfactory, according to the rules, proportionately awarding the punishment. But, none of these warranting procedures have been followed this case and simply the workman is dismissed, which is nothing but arbitrary exercise of power and the same is illegal. So far as this case is concerned, the Labour Court has arrived at a right decision to order reinstatement with back. wages, continuance of service and attendant benefits. Since this is a definite case wherein no opportunity was afforded, the decision of the petitioner/ Institute is totally in violation of the principles of natural justice." 8. Mr. P.K.Shahi, CGSC, however, appearing on behalf of the respondents submits that after the amendment of Article 311 (2) of the Constitution of India, by Constitution (Forty-second Amendment) Act, 1976, hereinafter referred to as the Forty Second Amendment there is no requirement of giving notice against the proposed punishment. 9. Neither on principle nor on precedent, I am inclined to accept the submission of Mr. Singh. Art. 311 (2) of the Constitution of India, prior to its amendment by the Amendment Act, read as follows: "311.Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State. 9. Neither on principle nor on precedent, I am inclined to accept the submission of Mr. Singh. Art. 311 (2) of the Constitution of India, prior to its amendment by the Amendment Act, read as follows: "311.Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State. XXX XXX XXX (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges and where it is proposed, after such inquiry, to impose on him any such, penalty, until he has been given a reasonable opportunity, of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry." 10. Article 311(2) after Forty Second Amendment, reads as follows: "311.Dismissal, removal or reduction in rank of persons employed in civil capacities under the Union or a State: XXX XXX XXX (2) No such person as aforesaid shall be dismissed or removed or reduced in rank except after an inquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Provided that where it is proposed after such inquiry, to impose upon him any such penalty. Such penalty may be imposed on the basis of the evidence adduced during such inquiry and it shall not be necessary to give such person any opportunity of making representation on the penalty proposed". 11. On comparison of the Article 311 (2) of the Constitution prior and after its amendment by the Forty Second Amendment, it is evident that the words "and where it is proposed, after such inquiry, to impose on him any such penalty, until he has been given a reasonable opportunity of making representation on the penalty proposed, but only on the basis of the evidence adduced during such inquiry" have been omitted and it has been specifically provided that "it shall not be necessary to give such person any opportunity of making representation on the penalty proposed." 12. It has to be borne in mind that making available the copy of the inquiry report to a delinquent employee was considered essential as a right, flowing from the principle of natural justice and not on account of any constitutional mandate. It is well settled that the requirement of the principle of natural justice can be truncated or can be altogether dispensed with by a valid legislation or decision. Here, in the present case, first proviso to Art. 311 (2) of the Constitution of India has in clear terms provided that it shall not be necessary "to give the delinquent employee" opportunity of making representation on the penalty proposed. In the face of the same, the insistence of the petitioner for providing opportunity against the proposed punishment shall be in the teeth of Constitutional provision which is impermissible. Any other view shall render the effect of amended Article 311 (2) redundant. It is difficult, nay impermissible to consider the words of the Constitution redundant. 13. Now, I revert to the authority of the Supreme Court is the case of Khem Chand (supra) relied on by the petitioner. The question before the Supreme Court did not relate to the effect on Art. 311 (2) of the Constitution on account of Forty-second Amendment and as such, same does not throw any light on the issue involved in the present case. 14. The decision of the Supreme Court in the case of Md. Ramzan Khan (supra) and B. Karunakar (supra) are after the Forty Second Amendment and have recognized the right of a delinquent employee to have a copy of the inquiry report and the right to represent against the finding, in case, the disciplinary authority is different than that of the inquiry officer. This right has been found to be flowing from the principle of natural justice notwithstanding the Forty-second Amendment. But those judgments do not contemplate that providing opportunity against the proposed punishment also flows from the requirement of the principle of natural justice. In my opinion the right to receive the inquiry officers report and to show cause against its finding is independent of the right to show cause against the penalty proposed. But those judgments do not contemplate that providing opportunity against the proposed punishment also flows from the requirement of the principle of natural justice. In my opinion the right to receive the inquiry officers report and to show cause against its finding is independent of the right to show cause against the penalty proposed. The right to get the inquiry officers report and to file show cause against the finding of the inquiry officer flows from the principle of natural justice but in my considered opinion the principle of natural justice can not be extended to the extent of giving notice against the proposed punishment on face of the specific stipulation in Article 311 (2) of the Constitution that "it shall not be necessary to give delinquent employee opportunity of making representation on the penalty proposed". In fact, in the case of B.Karunakar (supra), the Supreme Court has clearly held that after the Forty-second Amendment the delinquent employee is not required to be given the notice against the proposed punishment. The Supreme Court, in para-24 of the decision in the case of B.Karunakar (supra) has considered the effect of Art. 311 of the Constitution of India after the Forty Second Amendment, in the following words: "24.The right to receive the enquiry officers report and to show cause against the findings in the report was independent of the right to show cause against the penalty proposed. The two rights came to be confused with each other because as the law stood prior to the Forty-Second Amendment of the Constitution, the two rights arose simultaneously only at the stage when a notice to show cause against the proposed penalty was issued. If the disciplinary authority after considering the enquiry officers report has dropped the proceedings or had decided to impose a penalty other than that of dismissal, removal or reduction in rank, there was no occasion for issuance of the notice to show cause against the proposed penalty. In that case, the employee had neither the right to receive the report and represent against the finding of guilt nor the right to show cause against the proposed penalty. The right to receive the report and to represent against the findings recorded in it was thus inextricably connected with the penalty proposed. In that case, the employee had neither the right to receive the report and represent against the finding of guilt nor the right to show cause against the proposed penalty. The right to receive the report and to represent against the findings recorded in it was thus inextricably connected with the penalty proposed. Since the Forty-Second Amendment of the Constitution dispensed with the issuance of the notice to show cause against the penalty proposed even if it was dismissal, removal or reduction in rank, some courts took the view that the government servant was deprived of his rjght to represent against the findings of quilt as well. The error occurred on account of the failure to distinguish the two rights which were independent of each other." (underlining mine) 15 Further, in para-28 of the said judgment, the Supreme Court has in categorical terms observed that the Forty- second Amendment had dispensed with the opportunity of making representation on the penalty proposed. Relevant passage from para 28 of the judgment reads as follows: "28.XXXX The second stage follows the inquiry so carried out and it consists of the issuance of the notice to show cause against the proposed penalty and of considering the reply to the notice and deciding upon the penalty. What is dispensed with is the opportunity of making representation on the penalty proposed and not of opportunity of making representation on the report of the enquiry officer. The latter right was always there. But before the Forty- Second Amendment of the Constitution, the point of time at which it was to be exercised had stood deferred till the second stage viz., the stage of considering the penalty. Till that time, the conclusions that the disciplinary authority might have arrived at both with regard to the guilt of the employee and the penalty to be imposed were only tentative. All that has happened after the Forty-Second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officers report would be considered. All that has happened after the Forty-Second Amendment of the Constitution is to advance the point of time at which the representation of the employee against the enquiry officers report would be considered. Now, the disciplinary authority has to consider the representation of the employee against the report before it arrives at its conclusion with regard to his guilt or innocence of the charges." (Underlining mine) 16 Thus, the decision oi the Supreme Court in the case of B.Karunakar (supra), instead of supporting the case of the petitioner, goes against him. In the case of the Principal, St. Sebastians Industrial Institute (supra), Madras High Court was considering the essential requirement for imposition of penalty on an employee but has not gone into at all the question of notice against the proposed punishment after Forty-Second Amendment. 17. Mr. Singh then contends that the Central Reserve Police Force Act has defined more heinous and less heinous offences under sections 9 and 10 of the Act respectively and the allegation made against the petitioner of over-staying comes within less heinous offence as defined under section 10(m) of the Act and the punishment provided is imprisonment for a term which may extend to one year or with fine which may extend to three months pay or both. Learned counsel points out that the act of the petitioner having attracted the mischief of section 10(m) of the Act, the punishment of dismissal from service is illegal. I do not find any substance in the submission of the iearned counsel. Section 11 of the Act provides for awarding the punishment of dismissal in lieu of or in addition to any punishment subject to the rules made in the Act. 18. It is worth mentioning that in exercise of the power under section 18 of the Act, the Central Government had made Central Reserve Police Force Rules, 1955 , hereinafter referred to as the Rules. Chapter VI of the Rules provides for the discipline and procedure for the award of punishment. Item no. 1 of the Table appended to Rule 27 provides for the punishment of dismissal or removal from the Force with the remark that it has to be inflicted after formal departmental inquiry. Rule 27 not only provides for the punishment but has also provided for the authority competent to inflict the punishment. 19. Mr. Item no. 1 of the Table appended to Rule 27 provides for the punishment of dismissal or removal from the Force with the remark that it has to be inflicted after formal departmental inquiry. Rule 27 not only provides for the punishment but has also provided for the authority competent to inflict the punishment. 19. Mr. Singh then contends that the petitioner was not given sufficient time to bring on record the evidence in support of his defence. In this connection, he has referred to application filed by the petitioner dated 5.1.2000 (Annexure-5) wherein the petitioner had asked for leave so that he can place additional documents. It is pointed out that the enquiry officer declined to grant him the leave. I do not find any substance in this submission of the learned counsel also. In the letter relied to by the petitioner, he had asked for grant of leave so as to enable him to produce additional documents in his defence. Further, in the said letter itself, the petitioner has not stated the documents which he intended to produce and not only this, he went to the extent of saying that all the documents pertaining to his over-stay were already produced on 16.11.1999. Thus, the vague reference of producing documents made in the application was, in fact, a ploy to obtain leave, otherwise, there was no occasion for the petitioner to state that all the documents he had already filed on 16.11.1999. Further what documents petitioner intended to produce, has not been stated in the present application and it cannot be said that the same has caused any prejudice to him. For all these reasons, I do not find any substance in the submission of the learned counsel. 20. Mr. Singh then submits that after the petitioner went on leave, he submitted application for extension of leave and no communication rejecting the prayer having been communicated to the petitioner, it has to be assumed that the leave prayed for by the petitioner, was granted and thus the allegation of over-stayal is not sustainable. 20. Mr. Singh then submits that after the petitioner went on leave, he submitted application for extension of leave and no communication rejecting the prayer having been communicated to the petitioner, it has to be assumed that the leave prayed for by the petitioner, was granted and thus the allegation of over-stayal is not sustainable. The enquiry officer has referred to the plea of sickness and of other pleas of the petitioner and on appraisal of the same, he came to the conclusion that although petitioner was granted leave for the period 5.4.1999 to 9.5.1999 but he over-stayed for 146 days i.e. from 10.5.1999 to 2.10.1999 for which neither permission or sanction of the competent authority was granted. It is well settled that this court, in exercise of its power under Article 226 of the Constitution of India, does not act as a court of appeal and interfere with the finding of fact only when it is shown that the same is perverse, meaning thereby that the finding has been arrived at without considering the relevant material or on consideration of irrelevant material or a person duly instructed in law, shall not come to that finding. 21. Here, in the present case, petitioner was granted leave, but he did not join after the expiry of the leave period on the purported ground of his sickness and the inquiry officer considered his plea but found the same untrustworthy and accordingly, recorded the finding. Thus, the finding cannot be said to be perverse calling for interference by this court in exercise of its power under writ jurisdiction. 22. Mr. Singh lastly submits that punishment of dismissal from service is excessive and same deserves to be interfered with by this court in exercise of its power of judicial review. Reliance has been placed on a decision of the Supreme Court in the case of Trikha Ram V/s. V.K.Seth and another reported in AIR 1988 SC 285 and in the case of B.R. Singh and others etc. V/s. Union of India and others reported in AIR 1990 SC 1 . Reference to the authorities cited by the learned counsel for the petitioner has been made only to keep the record straight as those decisions have no bearing at all in the facts of the present case. V/s. Union of India and others reported in AIR 1990 SC 1 . Reference to the authorities cited by the learned counsel for the petitioner has been made only to keep the record straight as those decisions have no bearing at all in the facts of the present case. It is trite that what punishment a particular misconduct shall invite is primarily a function within the domain of the disciplinary authority and the authority superior to him exercising the power of appeal or revision, this courts interference is only called for in those cases where it is found that the punishment is disproportionate to the-gravity of allegation or in-other words, shocking to the conscience of the court. Bearing in mind the aforesaid principle, when one considers the case of the petitioner, it cannot be said that the order of dismissal is disproportionate to the gravity of allegation. Petitioner is a member of a Force of the Union. He went on earned leave and on expiry of its period, did not join and over-stayed for about 5 months pretending to be sick which plea has been found to be unworthy of reliance. In my opinion, the member of the force is expected to have high order of discipline and commitment. Petitioner failed to maintain that, hence, the order of dismissal does not call for interference by this court in exercise of its power under writ jurisdiction. 23. All the submissions made on behalf of the petitioner having found to be unsustainable, I do not find any merit in the application and the same is dismissed but without costs.