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2008 DIGILAW 519 (MP)

Union of India v. Satish s/o Late Babu Ram Saxena

2008-04-02

ABHAY GOHIL, SANJAY YADAV

body2008
ORDER : - Petitioner by Shri Madhukar Rao, Advocate. Respondent No. 1 by Shri M. K. Sharma, Advocate. The Union of India and its functionaries being aggrieved of the order dated 12-8-2008 passed by the Central Administrative Tribunal, Jabalpur Bench, Jabalpur (hereinafter shall be referred to "Tribunal") in Original Application No. 451/98 have preferred this writ petition under Article 227 of the Constitution of India. By the impugned order, the Tribunal while taking into consideration the peculiar circumstances has reduced the penalty inflicted upon the respondent. 2. The facts in nutshell are that the respondent, a Senior Auditor in Audit Stream in the office of Accountant General M. P. Gwalior while holding the office of General Secretary of Audit Welfare Association served a notice in that capacity of 'token protest' for pay refusal for pressing the demand regarding the recognition of said Association and certain other problems, on 30th November, 1995. The news of successful movement of refusal of pay was published in local newspaper "Dainik Bhaskar" on 1-12-1995 on the basis of press note release. This news item irked the petitioner giving thereby the cause to issue a charge-sheet under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1966, alleging misconduct under Rule 3 of Central Civil Services (Conduct) Rules, 1964. The enquiry culminated into the order of dismissal of the respondent passed on 11-10-1996. 3. The appeal against the order did not reap any positive result, whereupon, the respondent filed a revision which was entertained and the punishment of dismissal was modified to penalty of stoppage of one increment with cumulative effect and the treatment of period from the date of dismissal, i.e. 11-10-1996 to 6-1-1998 as dies non. Being aggrieved of the aforesaid order of punishment the respondent preferred the original application before the Tribunal; wherein, the impugned order came to be passed modifying the punishment. 4. Challenging the aforesaid order, it is urged by the learned Senior Counsel for the petitioner/Union of India, that it was beyond the scope of judicial review to substitute the punishment which was imposed on the basis of evidence on record and commensurate with the charges, levelled against the respondent. It is submitted that the Tribunal having affirmed the findings regarding prove of charges ought not have acted as an appellate authority in respect of the quantum of punishment. 5. It is submitted that the Tribunal having affirmed the findings regarding prove of charges ought not have acted as an appellate authority in respect of the quantum of punishment. 5. The respondent, however, supports the order and submits that there is no error being committed by the Tribunal in substituting the punishment on a finding that the punishment which was imposed was not in commensurate with the charges levelled. Reliance in support is placed on the judgment rendered by the Apex Court in the case of State of Gujarat vs. Anand Acharya alias Bharat Kumar Sadhu, (2007)9 SCC 310 . 6. Heard the learned Counsel for the parties and considered the rival contentions. 7. In the case of Anand Acharya, supra, the Apex Court in paragraph 15 was pleased to hold; "15. The well-settled proposition of law that a Court sitting in judicial review against the quantum of punishment imposed in the disciplinary proceedings will not normally substitute its own conclusion on penalty is not in dispute. However, if the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the Court, then the Court would appropriately mould the relief either by directing the disciplinary/appropriate authority to reconsider the penalty imposed or to shorten the litigation it may make an exception in rare cases and impose appropriate punishment with cogent reasons in support thereof (see Bhagat Ram vs. State of H.P., Ranjit Thakur vs. Union of India and U.P., SRTC vs. Mahesh Kumar Mishra)." 8. In the case at hand, the Tribunal after noting the scope of judicial review in respect of quantum of punishment and after recording peculiar facts of the case in paragraph 10 in the following terms; "The charges against the applicant is only that he issued a press note to the newspaper which was published in Dainik Bhaskar, and this has been taken is misconduct. The perusal in the charges reveal that there was neither any agitation nor a reaction so as to affect work of the respondents. Merely giving a press note to the publishing agency ought not to have been considered so serious matter so as to warrant to major penalty of the applicant. After all the applicant has been only endeavouring for furtherance of the trade union activities. It did not relate to him in person and no reaction whatsoever or undiscipline was caused. Merely giving a press note to the publishing agency ought not to have been considered so serious matter so as to warrant to major penalty of the applicant. After all the applicant has been only endeavouring for furtherance of the trade union activities. It did not relate to him in person and no reaction whatsoever or undiscipline was caused. As regard the position that as to whether withholding the increment with cumulative effect is a major penalty or not. As per the Rule 11 CCS (CCA) Rule withholding increment for a period of 3 years without cumulative effect has only been held as a minor penalty and therefore withholding of increment without cumulative effect would be a major penalty. It has definitely affected adversely the pension and other retiral benefits of the applicant." 9. And after considering the aforesaid facts the Tribunal came to conclusion that the penalty imposed on the respondent was not in commensurate with the charges levelled. However, since, the case against the respondent was not of no evidence, the Tribunal rightly, in our considered opinion, substituted the punishment. Moreso, when the respondent has retired from service w.e.f. 31-3-1995. 10. Thus, there being no perversity of finding, the order impugned does not call for any interference under Article 227 of the Constitution, the.petition is accordingly, dismissed. However no order as to costs. Petition dismissed.