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2008 DIGILAW 414 (HP)

Chuni Lal v. Union of India

2008-08-19

RAJIV SHARMA

body2008
JUDGMENT : Rajiv Sharma, J.- 1. The brief facts necessary for the adjudication of this writ petition are that the disciplinary proceedings were initiated against the petitioner. The Inquiry Officer submitted his report dated 20.12.2006 to the disciplinary authority. The respondent No.2 concurred with the inquiry report, dated 20.12.2006 and vide final order dated 17.1.2007 imposed the penalty of dismissal from service upon the petitioner. He preferred an appeal under Section 11 of the C.R.P.F. Act, 1949 read with Rule 28(a) and (e) of the C.R.P.F. Rules, 1955 before the Appellate Authority. The appeal was rejected by the Appellate Authority on 5th June, 2007. Mr. Vipirder Roach has strenuously argued that the appellate order Annexure P-11, dated 5th June, 2007 is not a reasoned order. He then contended that the Appellate Authority has not taken into consideration all the grounds mentioned in the appeal by the appellant. 2. Mr. Y.P.S. Dhaulta has supported the order dated 5th June, 2007. 3. I have heard the learned counsel for the parties and gone through the pleadings and the record carefully. It is evident from Annexure P-10, i.e. appeal preferred by the petitioner that he has taken as many as five grounds to assail the order dated 17.1.2007. The Appellate Authority was bound to take into consideration all the grounds taken in the appeal while deciding the appeal. It will be apt at this stage to reproduce the relevant portion of order dated 5th June, 2007 to ascertain whether there is due application of mind by the Appellate Authority and to see further whether the order is a speaking/reasoned order. The text of relevant para read thus:- “AND WHEREAS” on scrutiny/gone through the appeal, comments offered by the Comdt 20th Bn on Departmental inquiry proceedings, service records and other relevant records in the Departmental Inquiry against No- 9491437 CT/GD CHUNI LAL, the appellant, and also gone through the facts/evidence and relevant rules, I came to the conclusion that 3(Three) charges leveled against him stand proved beyond any shadow of doubt and the disciplinary authority has passed its order imposing penalty of “DISMISSAL FROM SERVICE” only after appreciating properly the gravity of offence committed by him in performance of his duty which deserves no review. ” 4. The Appellate Authority was bound to take into consideration all the grounds taken in the appeal and has to give his independent findings on each ground. ” 4. The Appellate Authority was bound to take into consideration all the grounds taken in the appeal and has to give his independent findings on each ground. The Appellate Authority, as is evident from the contents of para extracted hereinabove, has only stated that he has gone through the appeal, comments offered by the Commandant 20th Battalion and service records. The appellate order dated 5th June 2007 is a non-speaking order. There is non-application of mind by the Appellate Authority. It is settled law by now that the appellate order must be a speaking/reasoned order since the same is liable to be assailed before the competent Courts of law. In the absence of reasons assigned, it will be difficult for the Courts to ascertain whether all the points urged by a person in the appeal have been considered in accordance with law or not. The appeal is a statutory right and its decision has wider ramifications on the appellant. The Appellate Authority has to take the proceedings in a very-very careful/responsible manner. In the present case, the appellant has been dismissed from service and he had assailed this order in appeal. The appellate order need not be very detailed and lengthy order, but at least must reflect due application of mind and should deal with all the issues raised in appeal, legal as well as factual. It is the duty cast upon the Appellate Authority to see whether the proceedings were initiated against the delinquent in accordance with law and the procedure prescribed has been followed during the course of inquiry. He has also to ensure whether the disciplinary authority has passed the orders in conformity with law including the adequacy of the punishment awarded. 5. Their Lordships of the Hon’ble Supreme Court have held in State of West Bengal v. Atul Krishna Shaw and another, AIR 1990 Supreme Court 2205, that unless adequate reasons are given, merely because it is an appellate authority, it cannot brush aside the reasoning or findings recorded by the primary authority. Their Lordships have held as under:- “The appellate authority being final authority on facts is enjoined and incumbent upon it to appreciate the evidence; consider the reasoning of the primary authority and assign its own reasons as to why he disagrees with the reasons and findings of the primary authority. Their Lordships have held as under:- “The appellate authority being final authority on facts is enjoined and incumbent upon it to appreciate the evidence; consider the reasoning of the primary authority and assign its own reasons as to why he disagrees with the reasons and findings of the primary authority. Unless adequate reasons are given, merely because it is an appellate authority, it cannot brush aside the reasoning or findings recorded by the primary authority.” 6. Their Lordships of the Hon’ble Supreme Court in “Narinder Mohan Arya versus United India Insurance Co. Ltd. And Others (2006) 4 SCC 713 have held that the order passed by the Appellate Authority should be reasoned order. Their Lordships have opined as under:- “The Appellate Authority, therefore, while disposing of the appeal is required to apply his mind with regard to the factors enumerated in sub-rule (2) of Rule 37 of the Rules. The judgment of the civil court being inter partes was relevant. The conduct of the appellant as noticed by the civil court was also relevant. The fact that the respondent has accepted the said judgment and acted upon it would be a relevant fact. The authority considering the memorial could have justifiably come to a different conclusion having regard to the findings of the civil court. But, it did not apply its mind. It could have for one reason or the other refused to take the subsequent event into consideration, but as he had a discretion in the matter, he was bound to consider the said question. He was required to show that he applied his mind to the relevant facts. He could not have without expressing his mind simply ignored the same. An appellate order if it is in agreement with that of the disciplinary authority may not be a speaking order but the authority passing the same must show that there had been proper application of mind on his part as regards the compliance with the requirements of law while exercising his jurisdiction under Rule 37 of the Rules. In Apparel Export Promotion Council V. A.K. Chopra which has heavily been relied upon by Mr. Gupta, this Court stated: (SCC p. 770, para 16) "16. In Apparel Export Promotion Council V. A.K. Chopra which has heavily been relied upon by Mr. Gupta, this Court stated: (SCC p. 770, para 16) "16. The High Court appears to have overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being thesole fact-finding authorities." (emphasis supplied) The Appellate Authority, therefore, could not ignore to exercise the said power. The order of the Appellate Authority demonstrates total non-application of mind. The Appellate Authority, when the Rules require application of mind on several factors and serious contentions have been raised, was bound to assign reasons so as enable the writ court to ascertain as to whether he had applied his mind to the relevant factors which the statute requires him to do. The expression “consider’ is of some significance. In the context of the Rules, the Appellate Authority was required to see as to whether (i) the procedure laid down in the Rules was complied with; (ii) the enquiry officer was justified in arriving at the finding that the delinquent officer was guilty of the misconduct alleged against him; and (iii) whether penalty imposed by the disciplinary authority was excessive. In R.P. Bhatt V. Union of India this Court opined: (SCC p. 654, paras 4-5) "4. The word ‘consider’ in Rule 27(2) implies ‘due application of mind’. It is clear upon the terms of Rule 27(2) that the Appellate Authority is required to consider (1) whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc. the penalty, or may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the Appellate Authority to consider the relevant factors set forth in clauses (a), (b) and (c) thereof. “5. the penalty, or may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the Appellate Authority to consider the relevant factors set forth in clauses (a), (b) and (c) thereof. “5. There is no indication in the impugned order that the Director General was satisfied as to whether the procedure laid down in the Rules had been complied with; and if not, whether such noncompliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director General has also not given any finding on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. It seems that he only applied his mind to the requirement of clause (c) of Rule 27(2) viz. whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non-compliance with the requirements of Rule 27(2) of the Rules, the impugned order passed by the Director General is liable to be set aside." 7. Their Lordships of the Hon’ble Supreme Court in latest pronouncement in Divisional Forest Officer, Kothagudem and others v. Madhusudhan Rao, 2008 (2) Scale 322 , have held that though it is true that no detailed reasons are required to be given by the appellate authority, but some brief reasons should be indicated even in an order confirming the view of the lower forum. Their Lordships have held as under:- “It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interest of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given by the appellate authority, but some brief reasons should be indicated even in an order confirming the view of the lower forum.” 8. In view of the definitive law laid down by their Lordships of the Hon’ble Supreme Court in the cases cited supra, the appellate order dated 5th June, 2007 is quashed and set aside. In view of the definitive law laid down by their Lordships of the Hon’ble Supreme Court in the cases cited supra, the appellate order dated 5th June, 2007 is quashed and set aside. The Appellate Authority is directed to decide the appeal afresh by a speaking/reasoned order within a period of ten weeks from today. No costs.