Research › Search › Judgment

Allahabad High Court · body

2012 DIGILAW 59 (ALL)

UNION OF INDIA v. UPENDRA NATH TIWARI

2012-01-06

PANKAJ NAQVI, S.K.SINGH

body2012
JUDGMENT Hon’ble Pankaj Naqvi, J.—Heard Sri K.P. Singh, learned counsel for the petitioners and Sri Sanjay Kumar Om, learned counsel for the respondents. 2. Union of India alongwith Railway Administration have preferred this writ petition challenging the order dated 7.11.2008 passed by Central Administrative Tribunal, Allahabad Bench, Allahabad in Original Application No. 738 of 2005 Upendra Nath Tiwari v. Union of India and others, whereby an order of minor punishment imposed against the respondent, has been set-aside and that it has been further directed that all consequential benefits be made available to him. 3. The facts of the case are that the respondent while working as Travelling Ticket Examiner (A) (TTE) in North Eastern Railway at Bareilly in 2002 was served with a charge-sheet dated 27.11.2001 on the following allegations: (i) On 12/13.11.2002 while the respondent was performing his duties as TTE in train No. 3020 Dn. during the course of inspection it was found that one U.P. Police constable was found travelling in S-I coach without a ticket and that upon being asked to regularize the said ticket the respondent failed to do the same and permitted the constable to go. (ii) One passenger by the name of Tariq who was travelling from Rampur to Bareilly without a ticket but his EFT (Extra Fare Ticket) has been shown to be from Rampur. (iii) During the course of inspection it was found that there was shortage of Rs. 51/- in the railway money (EFT) which was made good from the personal money of the respondent. (iv) On detection of the aforesaid irregularities, respondent was asked to alight from the train at Bareilly but the respondent did not deboard the train and ultimately the train had to be stopped to deboard him. 4. The petitioner submitted his reply dated 20.12.2002, stating therein that the said reply may not be treated as a reply to the charge-sheet as in the said reply he had sought for certain documents such as: (i) The checking report of S-I coach be supplied as thereafter only an effective reply could be given, because as per the information of the respondent no inspection had taken place in S-I coach. (ii) Copy of the statement of passenger by the name of Tariq who is reported to have said that he was travelling from Rampur to Bareilly, be furnished whereas the respondent is said to have stated that he had boarded the train from Bareilly. (iii) A copy of the checking report in respect of the aforesaid charge No. 3 be also made available to respondent as a copy of the same had not been furnished to him, even though his signature had been taken. (iv) Copy of the memo directing the respondent to deboard the train as the respondent had not been given any such order. 5. However, it appears that the disciplinary authority did not take into consideration the reply of the respondent dated 20.12.2002, wherein a specific request had been made to supply copy of the documents/memos, before he could file a reply to the charge-sheet, passed an order of punishment of stoppage of increment for a period of 35 months without cumulative effects vide his order dated 15.1.2003. Respondent being aggrieved against the aforesaid order of punishment dated 15.1.2003 filed an appeal and the appellate authority vide its order dated 7.4.2003 remanded the matter back to the disciplinary authority with the direction that fresh order be passed after taking cognizance of the reply of the respondent dated 20.12.2002. The respondents vide order dated 22.4.2003 also declined his request of furnishing of the documents on the ground that there is no justification for the same. Once again the respondent vide letter dated 4.5.2003 drew attention of the authorities regarding the relevance and importance of the documents sought for but the respondents vide their letter dated 8.5.2003 directed the respondent, that no documents would be furnished to him as he had appended his signature on the documents concerned and that the respondent can defend himself even in the absence of the said documents. However, the petitioners without supplying the copy of the documents as directed by the appellate authority and also in view of the repeated requests being made by him in his aforesaid letters, did not supply the same and accordingly affirmed the earlier order of punishment i.e. withholding the increment (non-cumulative) for a period of 35 months, vide the order dated 3.6.2003. Against the said order the respondent filed a revision petition which too has been rejected by the respondents on 5.1.2004, hence the respondent employee preferred the Original Application before the Tribunal challenging the orders dated 3.6.2003, 5.8.2003 and 5.1.2004 passed by the respondents, whereby a minor punishment has been imposed upon the respondent employee withholding the increment for a period of 35 months (non cumulative). 6. The tribunal after considering the materials on record has observed that the direction of the appellate authority dated 7.4.2003 directing the disciplinary authority to pass an appropriate order in the light of the reply dated 20.12.2002 submitted by the petitioner, wherein a specific request has been made to supply a copy of the documents so that petitioner may give an adequate reply to the charges levelled against him, has not been objectively considered and the impugned order of punishment has been passed absolutely mechanically and without there being any application of mind and thus to that extent there is an infarction of the principles of natural justice. 7. The submission of Sri K.P. Singh, learned counsel for the petitioner is that on the facts of the present case, the principles of natural justice were duly complied with, in as much as, respondent was given adequate opportunity to defend himself and that disciplinary authority has given reasons for non supply of the documents asked for in the reply of the respondent dated 20.12.2002 and therefore, the Tribunal has exceeded in its jurisdiction by interfering against the order of minor punishment. 8. Per contra the submission of Sri Sanjay Kumar Om, learned counsel for the respondent employee is that once the Tribunal has recorded a finding that the order of appellate authority directing the disciplinary authority to take note off for the request of the respondents for supply of documents has been passed, then the disciplinary authority instead of supplying the said documents, cannot deny the same on irrelevant consideration and therefore, the Tribunal exercising supervisory power was well within its jurisdiction to interfere against an order of minor punishment as denial of documents, which have relevance and importance to the defence of the petitioner has occasioned severe miscarriage of justice and thereby principles of natural justice have been denied. 9. 9. During the course of arguments Sri K.P. Singh, learned counsel for the petitioner has placed heavy reliance on para 27 of the judgment, Union of India v. Parma Nanda (Civil Appeal No. 1709 of 1988) with SLP (Civil) No. 6998 of 1988 decided on 14.3.1989 which is quoted herein under: “We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is mala fide is certainly not a matter for the Tribunal to concern with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter.” 10. On the strength of the aforesaid paragraph he has contended that the powers of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated within the appellate jurisdiction and that Tribunal can only interfere where the findings of the Inquiry Officer or the competent authority are arbitrary or utterly perverse. 11. However, as a corollary in the same paragraph of the Apex Court judgment it has also been laid down, that in case any inquiry is found to be not in consonance with the principles of natural justice then any punishment based on the said inquiry will stand vitiated. Thus only a punishment which is awarded pursuant to an inquiry consistent with the principles of natural justice would be valid in law and the same cannot be interfered with by the Tribunal. 12. Thus only a punishment which is awarded pursuant to an inquiry consistent with the principles of natural justice would be valid in law and the same cannot be interfered with by the Tribunal. 12. On the facts of the present case this Court finds that the appellant authority vide its order dated 7.4.2003, while remanding the matter had clearly indicated and had directed the appellate authority that it shall take note off the reply of the respondent dated 20.12.2002 wherein he had sought for certain documents so that he could prepare an effective reply to the charges levelled against him and thereafter consequential orders be passed. The disciplinary authority without adverting has passed an order dated 8.5.2003 in a mechanical manner only on the ground that as the documents contained his signatures and that the incident had occurred in his presence, therefore, even in the absence of the requisite documents, the respondent can raise his defence to the charge-sheet. Respondent is said to have protested against the aforesaid memo dated 8.5.2003 by filing a detailed revision dated 13.5.2003 enumerating reasons as to why he is insisting for the said documents and clearly stating therein that denial of such documents would amount to violation of the principles of natural justice. Sri Sanjay Kumar Om, learned counsel for the respondents rightly placed reliance on the judgment of the Hon’ble Apex Court in State of U.P. v. Shatrughan Lal and others, 1998 AIR SCW 2897, for the proposition that the document which is forming the basis of the charge-sheet ought to be supplied to the delinquent, otherwise it cannot be said that effective opportunity was given to the employee to contest the charge resulting in denial of principles of natural justice. Relevant paragraphs 4, 5 and 7 of the judgment are quoted herein under: “4. Now one of the principles of natural justice is that a person against whom an action is proposed to be taken has to be given an opportunity of hearing. This opportunity has to be an effective opportunity and not a mere pretence. Relevant paragraphs 4, 5 and 7 of the judgment are quoted herein under: “4. Now one of the principles of natural justice is that a person against whom an action is proposed to be taken has to be given an opportunity of hearing. This opportunity has to be an effective opportunity and not a mere pretence. In departmental proceedings where charge-sheet is issued and the documents which are proposed to be utilised against that person are indicated in the charge-sheet but copies thereof are not supplied to him in spite of his request, and he is, at the same time, called upon to submit his reply, it cannot be said that an effective opportunity to defend was provided to him. (See: Chandrama Tewari v. Union of India, 1987 (Supp) SCC 518 : AIR 1988 SC 117 ; Kashinath Dikshita v. Union of India, (1986) 3 SCC 229 : AIR 1986 SC 2118 ; State of Uttar Pradesh v. Mohd. Sharif, (1982) 2 SCC 376 : AIR 1982 SC 937 ). 5. In High Court of Punjab and Haryana v. Amrik Singh, 1995 Supp (1) SCC 321, it was indicated that the delinquent officer must be supplied copies of documents relied upon in support of the charges. It was further indicated that if the documents are voluminous and copies cannot be supplied, then such officer must be given an opportunity to inspect the same, or else, the principles of natural justice would be violated. 7. Applying the above principles to the instant case, it will be seen that the copies of the documents which were indicated in the charge-sheet to be relied upon as proof in support of articles of charges were not supplied to the respondent nor was any offer made to him to inspect those documents.” 13. From the aforesaid it is crystal clear that in case a document is forming the basis of a charge-sheet, then a copy thereof is to be supplied to the delinquent so that he can effectively reply to the charge-sheet and by not doing so, a grave miscarriage of justice has resulted in favour of the respondent, vitiating the said inquiry. 14. 14. We are of the view that after the order of remand by the appellate authority, the disciplinary authority has mechanically proceeded with the matter and had denied the documents asked for by the respondents on absolutely irrelevant considerations i.e. on the ground as the respondent had appended his signatures on the said documents and the incident had occurred in his presence, therefore, there is no necessity of supplying the documents. By making such an observation in the memo dated 8.5.2003, the disciplinary authority has rather dealt with the matter casually and has not kept in mind the aforesaid dicta of the Hon’ble Apex Court and thereby making the order of punishment and the consequential orders vulnerable in law. The Tribunal having noticed the aforesaid substantial procedural lapse on the part of petitioners by not supplying with the copies of the documents and thereby causing severe prejudice to the case of respondents, rightly interfered against the said order and at the same time granting liberty to the petitioner to initiate fresh action, if deemed fit on the facts of the present case and in accordance with law. 15. Considering the matter in totality we do not find a fit case for interference in exercise of power Under Article 226 of the Constitution of India and accordingly the writ petition fails and is hereby dismissed. 16. No order as to costs. ——————