Research › Search › Judgment

Orissa High Court · body

2009 DIGILAW 252 (ORI)

UNION OF INDIA (UOI) v. SRI R. V. RAO

2009-03-23

B.N.MAHAPATRA, B.S.CHAUHAN

body2009
JUDGMENT : B.S. Chauhan, C.J. - This writ petition has been filled against the judgment and order of the Central Administrative Tribunal dated 19.4.2005 allowing the Original Application of the opposite party-Employee quashing the order of punishment of removal from service. 2. The facts and circumstances giving rise to the case are that the opposite party while working as Parcel Clerk at Palasa Railway Station from 16.00 hours of 10.1.1995 to 8.00 hours of 11.1.1995 was served with a notice that he committed serious irregularity of accounts and guard foils of PWB No. 864236, record, receipt, accounts and guard foils of PWB No. 864237 to 41 and the record receipt and account foils of PWB No. 864242 were found missing from the PWB(L) paid Book No. 85 during his duty hours and he failed to preserve the record while discharging his duty in the parcel office. The delinquent employee submitted his reply in defence on 21.3.2000 denying the allegations of misconduct/fraud or use of foil for any gainful purpose. His reply was not found satisfactory and thus, the enquiry was concluded and the Enquiry Officer submitted his report on 26.4.2000 holding that the charges stood proved against him. The Disciplinary Authority after accepting the enquiry report and meeting the requirements of law i.e. giving him an opportunity of hearing and considering his reply passed the order of punishment i.e. removal from service vide order dated 18.4.2001. The opposite party preferred appeal against the said order. However, it was rejected by the Appellate Authority vide Order dated 2.8.2001. The revision against the said appellate order was also rejected vide order dated 24.1.2002. 3. Being aggrieved, the delinquent employee approached the Central Administrative Tribunal ( hereinafter called 'Tribunal') which has allowed the application setting aside the said orders. Hence this petition. 4. Sri Narasingha Patra, learned Counsel appearing for the Petitioner submitted that enquiry was conducted against the opposite party-delinquent employee strictly in accordance with the statutory rules and observing the principles of natural justice. The Judicial Review lies against procedure adopted in taking the decision and not against the decision itself. 5. The Tribunal introduced the theory of bias and prejudice, though not a single person has been impleaded by the Petitioner by name. The Judicial Review lies against procedure adopted in taking the decision and not against the decision itself. 5. The Tribunal introduced the theory of bias and prejudice, though not a single person has been impleaded by the Petitioner by name. Pleas of mala fide and bias have never been raised by the delinquent employee at any stage of the proceeding or at the time of passing the order of punishment. More so, the Tribunal recorded the finding that the charge was vague and on such vague charges enquiry cannot be conducted. Therefore, the judgment and order of the Tribunal is liable to be set aside. 6. On the other hand, Sri A. Das, learned Counsel appearing for the opposite party - employee has submitted mat even if the enquiry had been conducted in accordance with law and allegation of bias and mala fide cannot be established, there was no charge of corruption or embezzlement or any unlawful gain. Therefore, the punishment of removal is disproportionate and the Tribunal has rightly set aside the same and the judgment and order impugned, do not require any interference. The statutory authorities have taken into consideration the past conduct of the employee and making reference to the punishment awarded against him earlier, came to the conclusion that punishment or removal was proportionate. The delinquent has never been informed either at the time of issuance of charge sheet or at the time of second show cause that his past conduct would be taken into consideration. The order impugned, does not warrant any interference. 7. We have considered the rival submissions made by the learned Counsel for the parties and perused the record. 8. Admittedly, there has been no charge regarding misappropriation or unlawful gain by the delinquent employee. The charge against the opposite party-employee read as under: That Sri R.V. Rao, while performing his duty as Parcel Clerk at PSA Rly Station from 16.00 hrs. of 10.1.95 to 08.00 hrs. 8. Admittedly, there has been no charge regarding misappropriation or unlawful gain by the delinquent employee. The charge against the opposite party-employee read as under: That Sri R.V. Rao, while performing his duty as Parcel Clerk at PSA Rly Station from 16.00 hrs. of 10.1.95 to 08.00 hrs. of 11.1.1995 single handedly committed serious irregularity in as much as the Accounts and Guard foils of the PWB No. 864236, Record, Receipt, Accounts and Guard foils of the PWB No. from 864237 to 864241 and the record, receipt and Account foils of the PWB No. 864242 were found missing from the PWB (L) paid Book No. 85 during his duty hours and the missing of the above said foils from the PWB (L) paid Book No. 85 was detected by him and Sri Rao failed to preserve the record while discharging his duty in the Parcel Office. Thus, Sri R.V. Rao failed to maintain devotion to duty as mentioned in Rule 3.1 and (ii) of Railway Service Conduct Rule-1960 as amended from time to time. 9. In the statement of imputation of mis-conduct, it has been mentioned that he had committed serious irregularity. Therefore, it was certainly not a case of corruption or unlawful gain. It is nobody's case that by use of said missing foils, the delinquent employee has made certain unlawful gain. In such a fact situation, the questions do arise as to whether the punishment of removal from service could be held to be proportionate to the delinquency proved; and to what extent in exercise of the power of judicial review the court can interfere with the quantum of punishment; and whether the charge had been so vague that no enquiry could be conducted on it. 10. So far as the issue of holding enquiry on the vague charges is concerned, the law is settled that charge has to be specific and precise. The delinquent must know what is the charge against him, so that he can make defence against the same. In case the charge is vague, the enquiry stands vitiated. However, there may not be a particular-specific charge against him, but he is aware as what is in the mind of the Disciplinary Authority and he submits reply to that also and leads evidence, he cannot be permitted to submit that the enquiry stood vitiated because the charge has been vague. However, there may not be a particular-specific charge against him, but he is aware as what is in the mind of the Disciplinary Authority and he submits reply to that also and leads evidence, he cannot be permitted to submit that the enquiry stood vitiated because the charge has been vague. (Vide State of Andhra Pradesh Vs. Sree Rama Rao, ; Executive Committee, U.P. Warehousing Corporation Vs. Chandra Kiran Tyagi, ; State of Assam and Another Vs. Mahendra Kumar Das and Others, ; Surath Chandra Chakrabarty Vs. State of West Bengal, ; Sawai Singh Vs. State of Rajasthan, ; and U.P.S.R.T.C. and Ors. v. Ram Chandra Yadav AIR 2003 SC 3596. 11. In the instant case, the number of missing counter foils given in the charge sheet and the delinquent employee was fully aware as what was the charge and he has submitted his reply, therefore, the Tribunal committed an error interfering with the order of the Disciplinary Authority on this count. 12. Under what circumstances and in what manner, past conduct of a delinquent employee can be taken into consideration while imposing punishment is no more res integra. 13. A Constitution Bench of the Supreme Court in State of Mysore Vs. K. Manche Gowda dealing with an issue as to whether the past conduct of an employee can be taken into consideration while imposing the punishment and held as under: Under Article 311(2) of the Constitution, as interpreted by this Court, a government servant must have a reasonable opportunity not only to prove that he is not guilty of the charges levelled against him, but also to establish that the punishment proposed to be imposed is either not called for or excessive. The said opportunity is to be a reasonable opportunity and, therefore, it is necessary that the government servant must be told of the grounds on which it is proposed to take such action: see the decision of this Court in the State of Assam and Another Vs. Bimal Kumar Pandit. If the grounds are not given in the notice, it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment: he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the grounds are not given in the notice, it would be well nigh impossible for him to predicate what is operating on the mind of the authority concerned in proposing a particular punishment: he would not be in a position to explain why he does not deserve any punishment at all or that the punishment proposed is excessive. If the proposed punishment was mainly based upon the previous record of a government servant and that was not disclosed in the notice, it would mean that the main reason for the proposed punishment was withheld from the knowledge of the government servant. It would be no answer to suggest that every government servant must have had knowledge of the fact that his past record would necessarily be taken into consideration by the Government in inflicting punishment on him; nor would it be an adequate answer to say that he knew as a matter of fact that the earlier punishments were imposed on him or that he knew of his past record. This contention misses the real point, namely, that what the government servant is entitled to is not the knowledge of certain facts but the fact that those facts will be taken into consideration by the Government in inflicting punishment on him. It is not possible for him to know what period of his past record or what acts or omissions of his in a particular period would be considered. If that fact was brought to his notice, he might explain that he had no knowledge of the remarks of his superior officers, that he had adequate explanation to offer for the alleged remarks or that his conduct subsequent to the remarks had been exemplary or at any rate approved by the superior officers. Even if the authority concerned took into consideration only the facts for which he was punished, it would be open to him to put forward before the said authority many mitigating circumstances or some other explanation why those punishments were given to him or that subsequent to the punishments he had served to the satisfaction of the authorities concerned till the time of the present enquiry. He may have many other explanations. The point is not whether his explanation would be acceptable, but whether he has been given an opportunity to give his explanation. He may have many other explanations. The point is not whether his explanation would be acceptable, but whether he has been given an opportunity to give his explanation. We cannot accept the doctrine of "presumptive knowledge" or that of "purposeless enquiry", as their acceptance will be subversive of the principle of "reasonable opportunity". We, therefore, hold that it is incumbent upon the authority to give the government servant at the second stage reasonable opportunity to show-cause against the proposed punishment and if the proposed punishment is also based on his previous punishments or his previous bad record, this should be included in the second notice so that he may be able to give an explanation. 14. In The Govt. of A.P. and Others Vs. Mohd. Taher Ali the Apex Court rejected a contention that unless the past conduct is a part of charge-sheet it cannot be taken into consideration while imposing the punishment observing that "there can be no hard-and-fast rule that merely because the earlier misconduct has not been mentioned in the charge sheet it cannot be taken into consideration by the punishing authority. Consideration of the earlier misconduct is often necessary only to reinforce the opinion of the said authority." In fact the argument had been advanced that it should be a part of charge-sheet. Though in K. Manche Gowda (supra) the Apex Court said that it may be a part of second show cause notice only for the purpose of imposing punishment, thus it is not necessary that it should be a part of the charge-sheet. 15. In the The State of Uttar Pradesh and Others Vs. Harish Chandra Singh, the Apex Court distinguished the judgment in K. Manche Gowda (supra) taking into consideration the fact that while issuing second show cause notice, it was indicated that the delinquent's past service records would be considered and no further notice would be required. Thus, impliedly the delinquent has noticed that his past conduct would be taken into consideration and has an opportunity to furnish an explanation in respect of his past service record. 16. In Bharat Forge Co. Ltd. Vs. Thus, impliedly the delinquent has noticed that his past conduct would be taken into consideration and has an opportunity to furnish an explanation in respect of his past service record. 16. In Bharat Forge Co. Ltd. Vs. Uttam Manohar Nakate, the Apex Court held that in exceptional circumstances a punishment can be interfered by the Court if found to be wholly disproportionate to the misconduct proved and while examining the said case, it was held that taking into consideration the past service records and his conduct during the inquiry, the punishment was not disproportionate to the delinquency. Therefore, the issue as to whether the past conduct had been taken into consideration while making reference to the same either in the charge-sheet or in the second show cause was not involved. 17. In Colour-Chem Limited Vs. A.L. Alaspurkar and Others the Apex Court considered the statutory rules which itself provides as what can be taken into consideration while imposing the punishment and it also referred to the consideration of the past record of the employee. 18. Thus in view of the above, law can be summarised that it is always necessary to inform the delinquent employee at any stage of the proceedings that the disciplinary authority intends to take into consideration the past service records of the delinquent employee while imposing punishment. In case, such an intention is not made clear, the delinquent employee may not be able to lead evidence or furnish any explanation about his past conduct. Therefore, the order stands vitiated for non-observance of principles of natural justice. 19. In the instant case, the delinquent has never been informed by the Disciplinary Authority either at the time of giving charge sheet or at later stage including at the stage of second show cause that his past conduct was likely to be considered. It was not permissible for the authorities to impose punishment taking into consideration the same. 20. The scope of judicial review against quantum of punishment is also very limited. The issue has been considered by the Hon'ble Supreme Court time and again and it has been held that if the punishment awarded is disproportionate to the gravity of the misconduct, it would be arbitrary and would violate the mandate of Article 14 of the Constitution. (Vide Bhagat Ram Vs. State of Himachal Pradesh and Others, ; Ranjit Thakur Vs. The issue has been considered by the Hon'ble Supreme Court time and again and it has been held that if the punishment awarded is disproportionate to the gravity of the misconduct, it would be arbitrary and would violate the mandate of Article 14 of the Constitution. (Vide Bhagat Ram Vs. State of Himachal Pradesh and Others, ; Ranjit Thakur Vs. Union of India (UOI) and Others, ; Union of India and others Vs. Giriraj Sharma, ; S.K. Giri Vs. Home Secretary, Ministry of Home Affairs and others, ; Bishan Singh and others Vs. State of Punjab and another, ; and B.C. Chaturvedi Vs. Union of India and others, ). 21. In Ranjeet Thakur (supra), the Apex Court observed as under: But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on the aspect, which is otherwise, within the exclusive province of the Court Martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. In the present case, the punishment is so stringently disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review. 22. The said judgment has been approved and followed by the Apex Court in Union of India and another Vs. G. Ganayutham (Dead) by LRs. and after examining elaborately the concept of reasonableness, rationality and proportionality, the same view has been reiterated. 23. In B.C. Chaturvedi (supra), after examining various earlier decisions of the Supreme Court, the Court observed that in exercise of the powers of judicial review, the Court cannot "normally" substitute its own conclusion or penalty. However, if the penalty imposed by an Authority "shocks the conscience" of the Court, it would appropriately mould the relief either directing the Authority to reconsider the penalty imposed and in exceptional and rare cases, in order to shorten the litigation, itself, impose appropriate punishment with cogent reasons in support thereof. While examining the issue of proportionality, Court can also consider the circumstances under which the misconduct was committed. While examining the issue of proportionality, Court can also consider the circumstances under which the misconduct was committed. In a given case, the prevailing circumstances might have forced him to do so, though he had no intention to do so. (Vide Giriraj Sharma (supra). The Court may further examine the effect, if order is set aside or substituted by some other penalty. 24. In G. Ganayutham (supra), the Apex Court has considered the entire law on the subject and compared the Indian Law with English, Australian and Canadian Laws, and held that in case the Court comes to the conclusion that the punishment awarded is disproportionate or the Disciplinary Authority was irrational in imposing the punishment, the punishment cannot be quashed as even then the matter has to be remitted back to the appropriate authority for reconsideration and it is only in very rare cases that the Court might- to shorten the litigation-think of substituting its own view as to the quantum of punishment in place of punishment awarded by the Competent Authority. In Aniltej Singh Dhaliwal (supra); U.P. State Road Transport Corpn. and Others Vs. A.K. Parul, ; and Teri Oat Estates (P) Ltd. Vs. U.T., Chandigarh and Others the Apex Court has taken the same view. 25. In V. Ramana Vs. A.P.S.R.T.C. and Others the Supreme Court reconsidered the whole issue, compared the Indian Law with English Law on judicial review and after placing reliance on large number of judgments, came to the conclusion that every administrative order should be rational and reasonable and the order should not suffer from any arbitrariness. The scope of judicial review as to the quantum of punishment is permissible only if it is found that it is not commensurate with the gravity of the charges and if the Court comes to the conclusion that the scope of judicial review as to the quantum of punishment is permissible only if it is found to be "shocking to the conscious of the Court, in the sense that it was in defiance of logic or moral standards." In a normal course, if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the Disciplinary Authority to reconsider the penalty imposed. However, in order to shorten the litigation, it may, in exceptional and rare cases, itself can impose appropriate punishment by recording cogent reasons in support thereof. 26. However, in order to shorten the litigation, it may, in exceptional and rare cases, itself can impose appropriate punishment by recording cogent reasons in support thereof. 26. In the case of State of Meghalaya and Others Vs. Mecken Singh N. Marak the Supreme Court has observed that a Court or a tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment is not commensurate with the proved charges. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The jurisdiction of High Court to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefor. The punishment imposed by the disciplinary authority or the Appellate Authority unless shocks the conscience of the Court, cannot be subjected to judicial review. 27. In State of M.P. and Others Vs. Hazarilal the Apex Court held that issue of proportionality may always be determined by the Court and Court is clear with the order of determination. While deciding the said case, Apex Court placed reliance on its earlier judgments in Management of Coimbatore District Central Co-operative Bank Vs. Secretary, Coimbatore District Central Co-operative Bank Employees Association and Another, ; and M.P. Gangadharan and Another Vs. State of Kerala and Others, . 28. If the case is examined in the light of the aforesaid legal propositions, the punishment of removal on such a proved charge is to be held to be disproportionate to the delinquency. Therefore, it is liable to be set aside. Some minor punishment could have been sufficient to meet the ends of justice as it was a clear-cut case of negligence and not of corruption. 29. As the delinquent employee has been out of service for a long time, learned Counsel appearing for the opposite party submitted that opposite party would be satisfied if the employee is reinstated in service and he would not claim any back wages. 30. 29. As the delinquent employee has been out of service for a long time, learned Counsel appearing for the opposite party submitted that opposite party would be satisfied if the employee is reinstated in service and he would not claim any back wages. 30. In view of the aforesaid submissions of the learned Counsel for the opposite party that the opposite party is willing to forego the back wages, no punishment is required. 31. In view of the above, we set aside the judgment and order of the Tribunal with the aforesaid modification and observation. The opposite party must forego his back wages, but he shall be entitled to other benefits for the past period of his service.