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2008 DIGILAW 497 (JHR)

Alok Goyal v. Union Of India

2008-04-23

D.G.R.PATNAIK

body2008
JUDGMENT D.G.R. Patnaik, J. 1. The petitioner is a member of Indian Administrative Service (IAS) in the Jharkhand Cadre. While he was posted as Vice Chairman of the Ranchi Regional Development Authority (RRDA), renovation work of Ranchi Town Hall was undertaken. Complaints regarding alleged financial irregularities and violation of rules and procedures committed in the renovation work were received. In pursuance of the direction contained in the letter dated 28.1.2000 of the Commissioner to the Urban Development Department, Government of Bihar, an internal fact finding enquiry was conducted by Sri Phool Singh, the then Commissioner, South Chhotanagpur Division, Ranchi. The enquiry officer submitted his report recommending initiation of departmental proceedings against the petitioner. 2. On the bifurcation of the erstwhile State of Bihar, the service of the petitioner was placed under the State of Jharkhand. Consequently, the enquiry report submitted by the enquiry officer was forwarded to the State of Jharkhand on 11.3.2002. The petitioner was asked to submit his reply on the report of the enquiry officer. The reply submitted by the petitioner was found not satisfactory where after a departmental proceeding was initiated against him. The memorandum of charges dated 29.10.2004 was served upon the petitioner. Mr. Sukhdeo Singh, a senior IAS officer was appointed as the enquiring officer. The petitioner participated in the enquiry. The enquiring officer submitted his report dated 22.12.2005 with his finding that out of 16 charges, nine charges were fully proved, three partially proved and four not proved. A copy of the enquiry report was served upon the petitioner by the disciplinary authority. On the basis of the decision of the Disciplinary Authority, the State Government proposed to impose punishment upon the petitioner. However, before imposing punishment, the advice/approval of the Union Public Service Commission (UPSC) was sought for by the State Government in accordance with the All India Service (Disciplinary and Appeal) Rules, 1919. After obtaining the advice and approval of the UPSC, the State Government decided to impose punishment on the petition by way of reduction of pay by one stage in the time scale for three years without cumulative effect. 2. The petitioner initially preferred an application before the Central Administrative Tribunal for quashing the charge-sheet and the enquiry report dated 22.12.2005 and also for quashing the departmental proceedings initiated against him. 2. The petitioner initially preferred an application before the Central Administrative Tribunal for quashing the charge-sheet and the enquiry report dated 22.12.2005 and also for quashing the departmental proceedings initiated against him. Later, by amendment of his original application, the petitioner sought an additional prayer for quashing the punishment imposed against him in the departmental proceeding. 3. The petitioners main ground of challenge was: (i) that the findings in the report of the enquiring officer was based on no evidence; (ii) the charges were sought to be sustained only by the report of the Divisional Commissioner, South Chhotanagpur Division, Ranchi dated 27.7.2000 without citing any witness; (iii) there has been gross violation of the principles of natural justice which cannot be cured by the appellate authority and the Tribunal had the Jurisdiction to interfere with the findings of the enquiry officer and with the order of punishment. 4. The respondents contested the petitioners prayer before the Tribunal on the ground that the petitioners application should not be entertained since he has not exhausted the alternative remedy available to him under the All India Service (Disciplinary and Appeal) Rules against the order of the disciplinary authority. 5. The Tribunal dismissed the petitioners application by holding that this was not an extraordinary case warranting Tribunals interference without the petitioner exhausting the available alternative remedy. The Tribunal further observed that in case the applicant prefers an appeal within one month from the date of the order, the appellate authority shall consider the same on merits and decide the same by a speaking order within six months of receipt thereof. It is against this order of the Tribunal that the petitioner has filed the instant writ application. 6. Assailing the impugned order of the Tribunal, Mr. A.K. Mehta, learned Counsel for the petitioner would argue that: (i) the Tribunal has erred by failing to appreciate that in the instant case, It was an error of law apparent on the face of the record which resulted in manifest injustice to the petitioner and had therefore warranted interference with the impugned order by the Tribunal. A.K. Mehta, learned Counsel for the petitioner would argue that: (i) the Tribunal has erred by failing to appreciate that in the instant case, It was an error of law apparent on the face of the record which resulted in manifest injustice to the petitioner and had therefore warranted interference with the impugned order by the Tribunal. (ii) that the enquiry against the petitioner was conducted without adhering to the principles of natural justice, nor was the petitioner given adequate opportunity of hearing; (iii) that the report of the enquiry officer was entirely based on the internal fact finding enquiry report submitted by the Commissioner, South Chhotanagpur Division, Ranchi; (iv) that no witness was cited for examination in the departmental enquiry and the petitioner was not given an opportunity to inspect the relevant documents; (v) that the rule requiring exhaustion of the alternative statutory remedy before the relief can be granted is a rule of policy, convenience and discretion, rather than the rule of law and in the instant case, the provisions of non-exhaustion of the alternative statutory remedy would not operate as a bar in view of certain contingencies, namely, the breach of the principles of natural justice which has resulted in infringement of the fundamental rights of the petitioner; (vi) that in view of the fact that there exists incorrigible defects in the enquiry proceedings that cannot be cured by appeal, revision or review, the Tribunal ought to have, decided on the main issues raised by the petitioner, instead of directing the petitioner to prefer appeal. 7. Controverting the grounds advanced by the petitioner, Sri R. Krishna, learned Counsel for the contesting respondents would submit the following: (i) That the departmental enquiry against the petitioner was Initiated on the basis of the internal fact finding enquiry report submitted by the then Commissioner, South Chhotanagpur Division, Ranchi; (ii) That before initiating the departmental proceedings, the petitioner was served with a copy of the internal fact finding report of the Commissioner; (iii) The petitioner had submitted his detailed reply to the show cause served upon him; (iv) That in the departmental proceedings, the petitioner was called upon to adduce evidence by way of his defence to the charges and the petitioner had participated in the enquiry and had availed full opportunity to inspect the relevant documents before the enquiry officer. (v) That the enquiry report submitted by the enquiry officer was duly considered and accepted by the disciplinary authority and thereafter a copy of the enquiry report was also served on the petitioner before imposing punishment upon him. Before proceeding to impose punishment, the advice and approval of the UPSC was also obtained and it was in accordance with the advice of the UPSC that the penalty was imposed on the petitioner. 8. The only point for consideration is whether the Tribunal was right in dismissing the petitioners application on the only ground that there was an alternative remedy? 9. The petitioner who belongs to the IAS Cadre is governed by the All India Service (Disciplinary and Conduct) Rules, 1919. The petitioners services were placed with the State of Jharkhand. It is not disputed that the State Government is empowered to initiate departmental proceedings against officers of the Cadre if there is reason to believe that the officer has indulged in acts of misconduct as defined under the Rules. 10. Rule 16(2) of the All India Service (Discipline and Appeal) Rules provides for appeal against the order of the State Government and reads as under: Rule 16(2) : Order against which appeal lies.--Subject to the provisions of Rule 15 and the Explanation to Rule 6, a Member of the service may prefer appeal to the Central Government against all or any of the orders, namely: (ii) an order passed by a State Government imposing any of the penalties specified in Rule 6; Rule 19 of the aforesaid Rules reads as follows: 19. Consideration of appeal--(1) In the case of an appeal against an order of the State Government imposing any penalty specified in Rule 6, the Central Government shall consider-- (a) whether the procedure laid down in these rules has been complied with, and, if not, whether such non-compliance has resulted in violation of any provision of the Constitution of India or in the failure of Justice; (b) whether the findings of the disciplinary authority are warranted by the evidence on record; and (c) whether the penalty imposed is, adequate, inadequate or severe. Section 20(1) of the Central Administrative Tribunals Act lays down that "A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances." 11. Section 20(1) of the Central Administrative Tribunals Act lays down that "A Tribunal shall not ordinarily admit an application unless it is satisfied that the applicant had availed of all the remedies available to him under the relevant service rules as to redressal of grievances." 11. As explained by the Supreme Court in Kailash Chandra v. Union of India , the word "ordinarily" means in the large majority of cases but not invariably. It therefore, implies that though despite non-exhaustion of alternative remedy, the writ Court may exercise its discretionary jurisdiction of judicial review, yet, such exercise of jurisdiction of judicial review would be applicable only in grave cases where the subordinate Tribunal or other officer act wholly without jurisdiction or in excess or in violation of principles of natural justice or refuses to exercise a jurisdiction vested in them or there is error apparent on the face of the record and such act or omission, error or excess, has resulted in manifest injustice. 12. In the present case, the petitioners main ground is that the disciplinary authority has acted without adherence to the principles of natural justice and that the findings of the enquiry officer and the disciplinary authority was not warranted by the evidence on record. These are the very questions which the appellate authority would have to consider if the petitioner prefers appeal against the orders of the State Government imposing penalty on him. The answer to these questions would certainly involve reappraisal of evidence by the appellate authority. Neither the Tribunal nor this Court can be called upon to reappraise the evidence. 13. In the light of the above discussions, we find no infirmity in the impugned order of the Tribunal to warrant interference by this Court. There is no merit in this writ application, which is dismissed accordingly. M. Karpaga Vinayagam, C.J. 14. I agree.