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2006 DIGILAW 1053 (MP)

Union of India v. K. K. Kamtaria

2006-09-05

A.K.GOHIL, A.K.PATNAIK

body2006
ORDER Patnaik, C.J. -- 1. In this writ petition under Article 226 of the Constitution the petitioners have challenged the order dated 29.10.2003 of the Central Administrative Tribunal, Jabalpur Bench in Gwalior in OA No. 371/2001. 2. The facts briefly are that the respondent was working as a Senior Goods Guard in the Railways. He remained absent from duties from 7.12.1996 to 31.12.1996. Disciplinary proceedings were initiated against the respondent for unauthorised absence from 7.12.1996 to 31.12.1996. The respondent pleaded in the disciplinary proceedings that he was suffering from Malaria fever and, therefore, he could not report to duty during the aforesaid period. The Senior Divisional Operations Manager, Central Railway, Bhopal (the disciplinary authority), after going through the findings of the Enquiry Officer, recorded evidence, documents available and the defence of the respondent, held in his order dated 10.5.1999 that the respondent was guilty of serious misconduct and was guilty of carelessness and lack of devotion to duty and that he has violated rules 3.1(i), (ii) and (iii) of the Railway Service Conduct Rules, 1966, and imposed the penalty of removal from service on the respondent w.e.f. 15.5.1999. Thereafter, the respondent filed appeal before the appellate Authority and the appellate Authority reduced the penalty of removal from service to that of compulsory retirement by order dated 13.8.1999. The respondent then filed a revision and the revisional authority, namely, the Chief Operating Manager, by his order dated 28.4.2000 reduced the penalty from compulsory retirement to that of reduction from the post of Sr. Goods Guard, Grade Rs. 5000-8000 (RSRP) to Goods Guard, Grade Rs. 4500-7000, fixing the pay at Rs.4,500/- for a period of three years within cumulative effect. By the said order dated 28.4.2000, the revisional authority also directed that the intervening period from the date of removal to that of rejoining Railway service shall be treated as Leave Without Pay. Aggrieved, the respondent filed the aforesaid OA before the Central Administrative Tribunal and by order dated 29.10.2003 the Central Administrative Tribunal, Jabalpur, Bench in Gwalior, quashed the punishment imposed by the revisional authority and directed that the appellant would be entitled to all consequential benefits and remanded the matter back to the revisional authority to impose an appropriate punishment. 3. Mr. 3. Mr. H.D. Gupta, learned Senior Advocate with Shri S.B. Gupta, learned counsel appearing for the petitioners, submitted that in a recent judgment of the Supreme Court in Union of India and another v. K.G. Soni [ 2006(3) JLJ 128 = 2006(6) Supreme 389 ], the Supreme Court after considering at length its earlier decisions in the cases of B.C. Chaturvedi v. Union of India and others [ (1995)6 SCC 749 ], Union of India and another v. G. Ganayutham [( 1997)7 SCC 463], and Damoh Panna Sagar Rural Regional Bank and others v. Munna Lal Jain [ 2005(3) JLJ 327 = (2005) 10 SCC 84 ], has held that unless the punishment imposed by the disciplinary authority or the appellate Authority shocks the conscience of the Court or the Tribunal, there is no scope for interference in judicial review. He submitted that in the present case punishment imposed by the revisional authority was a minor punishment of reduction of respondent from the post of Sr. Goods Guard to Goods Guard fixing his pay at Rs.4,500/- for a period of three years with cumulative effect and that such a punishment cannot be held to be one that shocks the conscience of the Court or the Tribunal considering the fact that the respondent was absent from duty from 7.12.1996 to 31.12.1996 and he did not follow the medical rules for reporting sick. He submitted that although the Tribunal in the impugned order has held that the aforesaid punishment shocks the conscience of the Tribunal, this is not a case where actually the punishment can be said to have been disproportionate to the misconduct or one which shocks the conscience of the Tribunal. He submitted that the order of the revisional authority shows that he has taken a very lenient view in the matter and he has imposed punishment after considering all relevant materials. 4. Mr. He submitted that the order of the revisional authority shows that he has taken a very lenient view in the matter and he has imposed punishment after considering all relevant materials. 4. Mr. Rakesh Parashar, learned counsel appearing for the respondent, on the other hand relied on paras 5 to 8 of the impugned order of the Tribunal and submitted that the respondent was ill on account of malaria and he had also sent a communication by post and had produced as proof the certificate of posting of the said communication before the Tribunal in the OA and, hence, the Tribunal has rightly recorded the findings that the respondent was absent on account of his severe illness, which was covered by medical record and the period of absence cannot be treated as wilful or unauthorised. 5. Paragraphs 5 to 8 of the impugned order of the Tribunal, on which Mr. Rakesh Parashar has relied on, are quoted hereinbelow : "5. We have carefully considered the rival contentions of the parties and perused the material on record. Nowhere in the disciplinary proceedings the medical record submitted by applicant was disputed. Applicant's communication informing respondents about his sickness is also not denied. However, it is suited that applicant could have sent information through messenger or family member. As the absence of applicant was on account of his severe illness which is covered by medical record the period of absence cannot be treated as wilful or unauthorised. Remaining absent on medical ground cannot be treated as wilful absence. In so far as permission is concerned, applicant has asked for the permission through his postal communication and it is not incumbent upon him to send information through messenger or family member. 6. In view of the following decisions it is held that when the punishment as compared to the misconduct shocks the conscience the matter can always be remanded back to the competent authority for reconsideration : Om Kumar v. Union of India [ (2002)2 SCC 306 ]; B.C. Chaturvedi v. Union of India [JT 1995(8) SC 65]. 7. As absence of applicant cannot be treated as wilful imposition of punishment of reduction to lower post certainly is disproportionate to the misconduct alleged. It shocks our conscience. 8. In the result, for the foregoing reasons OA is partly allowed. The punishment imposed upon applicant is quashed and set aside. 7. As absence of applicant cannot be treated as wilful imposition of punishment of reduction to lower post certainly is disproportionate to the misconduct alleged. It shocks our conscience. 8. In the result, for the foregoing reasons OA is partly allowed. The punishment imposed upon applicant is quashed and set aside. He shall be entitled to all consequential benefits. However, the matter is remanded back to the revisional authority to impose an appropriate punishment in accordance with law, if so advised. No costs." 6. It will appear from the aforesaid findings of the Tribunal that the Tribunal has sat over the order of the revisional authority as if it was sitting in appeal. The Tribunal failed to appreciate that in a matter relating to the disciplinary proceedings the Court or the Tribunal does not act as an appellate Authority and it has limited scope to interfere while exercising power of judicial review. In exercise of the power of judicial review, the Court or the Tribunal cannot substitute its own views for that of the revisional authority only on limited grounds. 7. In Union of India and another v. K.S. Semi (supra), the Supreme Court, after considering its earlier decisions in the cases of B.C. Chaturvedi v. Union of India and others; Union of India and another v. G. Ganayutham; and Damoh Panna Sagar Rural Regional Bank and others v. Munna Lal Jain (supra) has held : "14. The common thread running through in all these decisions is that the Court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury's case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision. 15. To put differently, unless the punishment imposed by the Disciplinary Authority or the appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. 15. To put differently, unless the punishment imposed by the Disciplinary Authority or the appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the Disciplinary Authority or the appellate Authority to reconsider the penalty imposed."' It will be clear from the aforesaid paras of the judgment of the Supreme Court in the case of Union of India and another v. K.G. Semi (supra) that the Court or the Tribunal in exercise of powers of judicial review will interfere in the administrator's decision if it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court and that scope of judicial review is limited to the deficiency in decision-making process and not the decision. 8. It is also well settled by the Supreme Court in a series of decisions that the High Court or the Tribunal in exercise of power of judicial review will not interfere with the findings of fact of the disciplinary authority so long as the findings are supported by some material on record and this is because it is the disciplinary authority who is empowered to decide as to whether the delinquent employee is guilty of the misconduct or not and the function of the Court or the Tribunal is only to find out as to whether the decision of the disciplinary authority has been arrived at by following the proper procedure and is based on some materials on record. The High Court or the Tribunal can interfere with the findings of facts of the disciplinary authority only if there is absolutely no material in support of such a finding of fact or the finding is such that no reasonable man would have arrived at on the available materials on record [See The State of Orissa and another v. Murlidhar Jena AIR 1963 SC 404 at p. 405, 408]. 9. In the present case the revisional authority has passed the following order in the case of the respondent : "It is fact that you remained unauthorisedly absent from duty for the period from 7.12.1996 to 31.12.1996 as you did not follow the medical rules for reporting sick. 9. In the present case the revisional authority has passed the following order in the case of the respondent : "It is fact that you remained unauthorisedly absent from duty for the period from 7.12.1996 to 31.12.1996 as you did not follow the medical rules for reporting sick. However, as the period of unauthorised absence is less than a month, I am of the opinion that the penalty of 'compulsory retirement' is too severe. In view of the above and considering that you are an ex-serviceman, I have taken a lenient view and decided to give you another opportunity to serve the Railway organisation. Hence, I have decided to reduce the penalty from Compulsory Retirement to that of "Reduction from the post of Sr. Goods Guard, Grade Rs.5000-8000 (RSRP) to Goods Guard, Grade Rs.4500-700, fixing your pay at Rs.4,500/- for a period of three years with cumulative effect". It will be clear from the aforesaid order elated 28.4.2000 of the revisional authority that he has found that respondent has remained unauthorisedly absent from duty for the period from 7.12.1996 to 31.12.1996, as he had not followed the medical rules for reporting sick. This was finding of fact recorded by the revisional authority on the basis of the records of the disciplinary proceedings and this finding of fact could not be reversed by the Tribunal merely because the Tribunal took a different view on the materials before the disciplinary authority. But, a reading of para 5 of the impugned order of the Tribunal quoted above would show that the Tribunal has re-appreciated the materials on record and has come to its own conclusion that this is not a case of unauthorised absence and, therefore, the respondent was not liable for the punishment of reduction of the respondent from the post of Sr. Goods Guard to Goods Guard as awarded by the revisional authority in the aforesaid order dated 28.4.2000. The Tribunal has therefore exceeded its power of judicial review and has acted like an appellate Authority and the impugned order of the Tribunal was liable to be quashed on this ground alone. 10. For the aforesaid reasons, we quash the impugned order dated 29.10.2003 of the Central Administrative Tribunal but we make it clear that the promotion given to the respondent in the meanwhile to higher post will not be disturbed by the appellant. 11. The appeal is accordingly allowed.