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2013 DIGILAW 624 (PAT)

Mukesh Narayan Sinha v. Union of India

2013-05-15

NAVIN SINHA, SHIVAJI PANDEY

body2013
ORDER (Per: HONOURABLE MR. JUSTICE NAVIN SINHA) We have heard Learned Senior Counsel for the petitioner and the respondents. 2. The petitioner is aggrieved by order dated 15.3.2011 passed in OA number 547/2008 by the Central Administrative Tribunal, Patna Bench, dismissing the challenge to the order for compulsory retirement dated 7.4.2008 affirmed in Appeal on 24. 10. 2008. 3. A memorandum of charge dated 4.11.2006 was served upon the petitioner. In the departmental proceeding majority of charges are said to have been proved. The order of compulsory retirement states that the petitioner denied the charges and questioned the fairness of the inquiring authority and the manner in which it was conducted. The petitioner is alleged not to have cross-examined witnesses produced during inquiry. He also submitted a written brief of defense. A copy of the inquiry report was also furnished and he replied to the same after consideration of which the impugned order of compulsory retirement was passed. The petitioner then preferred an Appeal also which has been rejected. 4. Learned Senior Counsel for the petitioner contended that the inquiry could be held by an authority subordinate to the appointing authority but punishment could not be imposed by such an authority. The departmental proceeding was vitiated by more than one procedural irregularity. The appellate order was also cryptic and non- speaking in nature. The order for Compulsory retirement and the Appellate order were fit to be set aside and the matter remanded to proceed afresh from the stage of the departmental inquiry. It was also submitted that because the impugned orders are bad, simultaneous with the order for remand the petitioner is entitled for reinstatement also. 5. Learned Senior Counsel for the respondents fairly acknowledged that the Appellate order was not reasoned and speaking in nature and it may be set aside and the matter remanded to the Appellate authority. 6. In a challenge to an order of punishment passed in a departmental proceeding, the power or judicial review vested in the Court is primarily confined to errors in the decision making process. If the proceeding suffers from procedural irregularities, the order is required to be set aside and the matter remanded to proceed afresh from the stage of irregularity. In such an event the question of reinstatement does not arise. If the proceeding suffers from procedural irregularities, the order is required to be set aside and the matter remanded to proceed afresh from the stage of irregularity. In such an event the question of reinstatement does not arise. It is not the case of the petitioner that no charges had been framed or served or that the entire proceedings were held ex parte and contrary to law. The service of the memo of charge, opportunity of defense, submission of a written statement, the giving of a 2nd show cause notice, consideration of the reply are all not denied. The Appellant has availed the remedy of an Appeal also. We are therefore not persuaded that at this stage the present calls for any direction for reinstatement at the time of remand. The aforesaid distinction was explained in (1996) 3 SCC 364 (State Bank of Patiala v. S.K. Sharma) as follows :- “33(5). In other words, a distinction must be made between “no opportunity” and no adequate opportunity, i.e., between “no notice”/“no hearing” and “no fair hearing”. (a) In the case of former, the order passed would undoubtedly be invalid (one may call it „void? or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule of audi alteram partem) has to be examined from the standpoint of prejudice; in other words, what the Court or Tribunal has to see is whether in the totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing and the orders to be made shall depend upon the answer to the said query….” 7. We are purposefully refraining from considering the merits of the matter and the contentions and counter contentions in view of the nature of order that we propose to pass. We are also of the considered opinion that all objections sought to be raised before us can well be considered by the Appellate authority also. It shall not be appropriate exercise of jurisdiction at this stage to usurp the powers of the Appellate authority. 8. The opportunity to file an Appeal is not an empty formality. We are also of the considered opinion that all objections sought to be raised before us can well be considered by the Appellate authority also. It shall not be appropriate exercise of jurisdiction at this stage to usurp the powers of the Appellate authority. 8. The opportunity to file an Appeal is not an empty formality. It is but another opportunity to the delinquent for convincing the authorities that he was not guilty and that he deserves to be exonerated or that the procedure followed for indicating him was flawed leading to denial of justice and a finding in accordance with law. The remedy is therefore a substantive right especially when it is provided in the rules. If the Appellate authority differs with the findings of the disciplinary authority undoubtedly the former is required to record his reasons displaying full application of mind. An Appellate order of affirmance may not be that reasoned and contain elaborate discussion, but nonetheless it is required to indicate that the Appellate authority had examined the findings of the inquiry authority, the grounds taken in the memo of appeal followed by a brief discussion why the appellate authority was satisfied that the order of the disciplinary authority required no interference in juxtaposition with the grounds taken in Appeal. 9. In (2008) 3 SCC 469 (Divisional Forest Officer, Kothagudem v. Madhusudhan Rao) it has been observed : - “20. 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 interests 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, but some brief reasons should be indicated even in an order affirming the views of the lower forum.” 10. We have applied our mind to the appellate order dated 24.10.2008. It acknowledges that the petitioner had raised procedural objections that the enquiry was not conducted fairly as per rules, full opportunity to present defense was not provided and that he was not permitted to cross examine witnesses but summarily rejects them opining that nothing had been stated about the substantive charges and that no new facts had been brought on record. In an Appeal new facts cannot be raised or considered. There is no discussion of the nature of objections raised by the Petitioner before the Appellate authority much less any consideration and application of mind to reject it with reasons. 11. The Appellate order dated 24.10.2008 is set aside and the matter is remanded to the appellate authority to pass a fresh reasoned and speaking order of the manner discussed. We require the Appellate authority to pass such fresh order within a period of two months from the date of receipt and or presentation of a copy of the present order. 12. The application is allowed.