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2005 DIGILAW 3071 (RAJ)

Union of India v. Babu Lal Meena

2005-11-21

KRISHAN KUMAR ACHARYA, S.N.JHA

body2005
Judgment S.N. Jha, CJ.- This writ petition by the Union of India and the officials of the Department of Posts is directed against the order of the Central Administrative Tribunal dated 011.2001 in OA No. 354/1997 allowing the application of the respondent. The respondent had filed the application for quashing the order by which he was compulsorily retired as a measure of punishment in a disciplinary proceedings. 2. While posted as Assistant Superintendent of Post Offices (Head Quarters)at Nagaur a departmental proceeding was initiated against the respondent on the following charges:-“Article I- That the said Shri B.L. Meena, ASP (HQs), Nagaur while residing in the Postal Colony, Nagaur during the night dated 11/110.1990 at about 0100 hours to 0250 hours uttered ugly words and abused a woman Smt. Khetu Bhargava in the state of high intoxication. Thus, Shri B.L. Meena allegedly committed an act of gross misconduct such a unbecoming of a Government servant in terms of Rule 3(1)(iii) of CCS (Conduct) Rules, 1964 inasmuch as violated the provisions of Rule 22 (c) of CCS (Conduct) Rules, 1964 by appearing in a public place in a state of intoxication. Article-II. That the said Shri B.L. Meena while abusing in the Postal Colony, Nagaur in the night of 11/110.1990 has provoked Shri Chainaram, P.A. who was residing in Quarter No. II/17 to sprinkle the Petrol/Kerosene on the quarter of Shri B.L. Bhargava occupant of Quarter No. II/18 and fire his residence in order to kill his family members. Thus Shri B.L. Meena allegedly committed an act of gross misconduct such a unbecoming of a Government servant in terms of Rule 3(i)(iii) of CCS (Conduct) Rules, 1964. Article III - That the said Shri B.L. Meena while functioning as ASPOs (H.Q.) Nagaur issued orders under his own signatures to the Postmaster Nagaur H.Q. vide letter No. 311-2/1990 dated 110.1990 (File transfer and Posting) to relieve Shri B.L. Bhargava, P.A. Nagaur H.Q. and direct him to join as P.A. Riyan without the prior approval of undersigned. Thus, Shri B.L. Meena by his above act, exhibited lack of devotion to duty and thereby shown gross insubordination violating the provisions of Rule 3(1)(ii) of CCS (Conduct) Rules, 1964. Thus, Shri B.L. Meena by his above act, exhibited lack of devotion to duty and thereby shown gross insubordination violating the provisions of Rule 3(1)(ii) of CCS (Conduct) Rules, 1964. Article -IV - That the said B.L. Meena was asked to vacate his quarter number III/21 of Postal Colony Nagaur in view of the prevailing unhealthy atmosphere of the colony due to nuisance created by him in the night of 11/110.1990 vide this office memo No. D2-7/90/Q-21 dated 210.1990 and 30.10.1990 but Shri B.L. Meena did not carry out the order and thus allegedly contravened the provisions of Rule 3(1)(iii) of CCS (Conduct) Rules, 1964. 3. The charge-sheet containing the above charges dated 211.1990 alongwith the statement of imputation of misconduct, list of documents, and list of witnesses was served on the respondent and he submitted his reply on 012.1990. One Shri J.R. Suthar, Superintendent of Post Offices, Barmer was appointed Inquiry Officer. At the inquiry witnesses were examined on behalf of the department. The respondent too examined witnesses in his defence. Both the department and the respondent, also, filed documents in support of their respective case. At the end of inquiry which was held on a number of dates between 211.1990 and 15.03.1991 the Inquiry Officer submitted his findings holding the respondent guilty on all the counts. Copy of the inquiry report was furnished to the respondent and he submitted reply in the light of the findings. On consideration of the materials before him the Director, Postal Services, Western Region, Jodhpur, as the competent authority, imposed the penalty of compulsory retirement vide order dated 28.06.1991. The respondent preferred a time barred appeal which was dismissed on 07.05.1992 on the ground of limitation. He then filed application in the Tribunal being OA No. 414/1992 which was allowed vide order dated 10.09.1996 with a direction to decide the appeal on merits. The appellate authority, namely, the Post-Master General, Punjab Circle by a reasoned order dated 25.07.1997 dismissed the appeal. The respondent again approached the Tribunal in OA No. 354 of 1997 which was allowed on 011.2001 giving rise to this writ petition. .4. The Tribunal observed that there had been some clash of interest between the respondent and B.L. Bhargava and/or his wife, residing in the same colony. The respondent again approached the Tribunal in OA No. 354 of 1997 which was allowed on 011.2001 giving rise to this writ petition. .4. The Tribunal observed that there had been some clash of interest between the respondent and B.L. Bhargava and/or his wife, residing in the same colony. The allegation against respondent was that he had abused his wife in a state of intoxication in the night of 11/110.1990 and had also provoked Chaina Ram to sprinkle kerosene/ petrol on the quarter of Bhargava. Though the prosecution witnesses stated about the respondent abusing Smt. Bhargava in a drunken state, they were sleeping at the time of incident. The defence witnesses also stated to be sleeping at the relevant time which means that there was no shouting, else it would have awakened them. No medical examination of the respondent was held and, therefore, it cannot be said that he was intoxicated and the allegation was based only on hearsay. The Tribunal also observed that the inquiry officer till recently held the post of Assistant Superintendent of Post Offices, Nagaur and was close to the Bhargava family as well as the witnesses. He therefore, cannot be said to be a disinterested person who should have been appointed as inquiry officer. The Tribunal particularly referred to the evidence .of Sridhar Sharma - a prosecution witness to the effect that “conduct of Shri B.L. Meena with him and other staff was good. I never heard any unpleasant word from Shri B.L. Meena and I have never seen Shri B.L. Meena under drunken state nor I have found Shri B.L. Meena ever creating nuisance after taking liquor.” The Tribunal also drew adverse inference from the fact that the wife of B.L. Bhargava with whom misconduct was allegedly committed kept quite when she saw Chaina Ram sprinkling kerosene/petrol on her house so as to set the house on fire. On the basis of these findings/observation amongst others the Tribunal set aside the impugned orders of the disciplinary authority and the appellate authority and allowed the application with a direction to re-instate the respondent forthwith with all consequential benefits like pay, promotion, seniority etc. 5. It may be relevant to mention here that pursuant to the order of the Tribunal after contempt petition came to be filed by the respondent he was reinstated on 13.02.2003. 6. 5. It may be relevant to mention here that pursuant to the order of the Tribunal after contempt petition came to be filed by the respondent he was reinstated on 13.02.2003. 6. Shri Vineet Kumar Mathur appearing for the petitioner submitted that the Tribunal committed a patent error of jurisdiction in setting aside the order of penalty on re-appraising the evidence. Counsel submitted that the jurisdiction of the Tribunal is akin to that of the High Court under Article 226 of the Constitution of India and it cannot consider the correctness or otherwise of the decision as if sitting in appeals over the findings/orders of the disciplinary authority; the jurisdiction of the Tribunal is limited to finding out only the correctness or otherwise in the decision making process. In support of his submissions Counsel placed reliance on Union of India & Ors. vs. Upendra Singh, 1994 (3) SCC 357 , Government of Tamilnadu vs. A. Rajapandian, 1995 (1) SCC 216 , Union of India & Ors. vs. Bhagwan Singh, 1995 (6) SCC 476 , Commissioner and Secretary to the Government & Ors. vs. C. Shanmugan, 1998 (2) SCC 394 and Secretary to Government Home Department vs. Srivaikundathan, 1998 (9) SCC 553 . 7. Counsel for the respondent firstly submitted that there is no such limitation on the power of the Tribunal in deciding application under Section 19 of the Administrative Tribunals Act as in the case of the High Court in making judicial review of administrative decisions under Article 226 of the Constitution and, therefore, in the facts of the case the Tribunal was justified in re-appraising evidence to find out correctness of the decision. Alternatively, he submitted that if this Court comes to the conclusion that the Tribunal committed error in going into the factual aspects of the case and re-appraising the evidence, the matter may be sent back for fresh decision. Counsel also submitted that as a matter of fact having been reinstated pursuant to the Courts order, this Court may not exercise discretion against the respondent which would have the effect of removing him from service. Counsel submitted that in any view, the punishment of compulsory retirement was harsh and disproportionate, and even if the charges are found to be proved, a lesser punishment would have been sufficient. Counsel submitted that in any view, the punishment of compulsory retirement was harsh and disproportionate, and even if the charges are found to be proved, a lesser punishment would have been sufficient. Finally, Counsel urged that having worked on reinstatement pursuant to the order of this Court, the additional period should be counted towards the total length of service of the respondent and he be allowed consequential benefits including retiral benefits. .8. It appears that the submission that while deciding application under Section 19 of the Administrative Tribunals Act the Tribunal cannot go into factual aspect of the case and re-appraise evidence was made to the Tribunal too, in response to which it observed- .“We are well aware that Courts/Tribunal are not permitted to re-appreciate the evidence adduced during departmental enquiry, however, when it is of the view that the conclusion drawn are perverse or it is a case of no evidence or the penalty imposed is dis-appropriate to alleged mis-conduct then the Tribunal can interfere. Close reading of the case reveals that it is a case of no evidence, as would be discussed in subsequent paragraphs, and therefore, we are constrained to re-appreciate the material placed before the enquiry officer.” 9. Counsel for the petitioner took pains to refer to the evidence on record, particularly that of Sridhar Sharma, and submitted that there was more than enough evidence available on record and the Tribunal committed serious error in observing that it was a case of no evidence. Counsel referred to the later part of the statement of Sridhar Sharma on re-examination wherein he stated that in the night of 110.1990 he was asleep in his quarter and he did not hear any noise in that night. 10. Shri Rakesh Arora, learned Counsel for the respondent also referred to the statements of witnesses and tried to persuade us to take the view that the evidence on record was not enough to prove the charges. 11. In this view of the well settled legal position regarding the nature of jurisdiction by the Tribunal it is not necessary to go into the factual aspects of the case. Indeed, the factual aspects could not have been gone into by the Tribunal and by this Court. 11. In this view of the well settled legal position regarding the nature of jurisdiction by the Tribunal it is not necessary to go into the factual aspects of the case. Indeed, the factual aspects could not have been gone into by the Tribunal and by this Court. The jurisdiction of the Tribunal like that of the High Court is limited to finding out the error, if any, in the decision making process and not the decision itself . Also, it is well settled that where there is some evidence, the High Court or Tribunal cannot go into the sufficiency or otherwise of evidence. The following observations in Union of India & Ors. vs. Upendra Singh, 1994 (3) SCC 357 may usefully be noticed:- “It may be recalled that the jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction o the High Court under Article 226 of the Constitution. Therefore, the principles, norms and the constraints which apply to the said jurisdiction apply equally to the Tribunal. If the original application of the respondent were to be filed in the High Court it would have been termed, properly speaking, as a writ of prohibition. A writ of prohibition is issued only when patent lack of jurisdiction is made out. It is true that a High Court acting under Article 226 is not bound by the technical rules applying to the issuance of prerogative writs like certiorari, prohibition and mandamus in United Kingdom, yet the basic principles and norms applying to the said writ must be kept in view.” In Government of Tamilnadu & Anr. vs. A. Rajapandian, 1995 (1) SCC 216 , the Supreme Court observed “It has been authoritatively settled by string of authorities of this Court that the Administrative Tribunal cannot sit as a Court of appeal over a decision based on the findings of the inquiring authority in disciplinary proceedings. Where there is some relevant material which the disciplinary authority has accepted and which material reasonably supports the conclusion reached by the disciplinary authority, it is not the function of the Administrative Tribunal to review the same and reach different finding than that of the disciplinary authority.” 12. The submissions of the Counsel for respondent on the point of jurisdiction of the Tribunal, therefore, are totally misconceived and must be rejected. 13. The submissions of the Counsel for respondent on the point of jurisdiction of the Tribunal, therefore, are totally misconceived and must be rejected. 13. We also do not find any substance in the submission that the punishment of compulsory retirement was harsh or disproportionate. Firstly, neither this Court nor the Tribunal can substitute another penalty for the penalty imposed by the disciplinary authority, this is an executive function which cannot be indirectly performed by the Courts. In appropriate case, where the penalty appears to be grossly disproportionately and shocking to conscience, having regard to the nature of the charges, the Court may ask the disciplinary authority to reconsider the nature and quantum of penalty. In the instant case however, we do not think that penalty of compulsory retirement was harsh or disproportionate. Indeed, the alleged acts of the respondent were highly unbecoming of a public servant which called for a deterrent treatment. Compulsory retirement is rather a lenient penalty as it does not deprive the person of retiral benefits unlike dismissal from service. 14. As regards the effect of reinstatement, we may only observe that the reinstatement was the consequence of the vacation of stay. The Court earlier by order dated 05.02.2002 had stayed operation of the order of the Tribunal. The stay was vacated on 13.08.2002. Orders by which stay is granted or vacated are interim orders which operate till disposal of the case. The object of such orders is to protect the interest of the parties, or one of them, as far as possible, but it is always subject to the ultimate result of the case. Having come to the conclusion that the order of penalty did not warrant any interference and the Tribunal committed error in taking a different view of the matter, we are not impressed by the fact that the respondent stands reinstated pursuant to an interim order of this Court. Such reinstatement cannot be a ground to allow continuity of service nor it can be counted for the purpose of retiral benefits as extending the tenure of service. It is clear that for the service rendered by the respondent on reinstatement, he must have been paid emoluments and he cannot claim any additional benefit. 15. We also do not find any substance in the submission of the Counsel for the respondent that the matter should be sent back to the Tribunal for fresh decision. It is clear that for the service rendered by the respondent on reinstatement, he must have been paid emoluments and he cannot claim any additional benefit. 15. We also do not find any substance in the submission of the Counsel for the respondent that the matter should be sent back to the Tribunal for fresh decision. Merely because the Tribunal has taken a wrong view of the matter it does not mean that it would justify remand. Remand may be made where there is no decision on merit by the Court or the Tribunal. The matter having been decided on merit by the Tribunal there can be no justification for a fresh exercise merely because the Tribunal committed error in deciding the case. 16. In the above premise the decision of the Tribunal being wholly unsustainable we find no difficulty in setting aside the order. 17. In the result the order of the Tribunal dated 011.2001 is set aside and the writ petition is accordingly allowed.