C. P. Upadhyaya v. Chairman & M. D. Power Grid Corporation of India Ltd.
2016-04-29
ASHWANI KUMAR MISHRA
body2016
DigiLaw.ai
JUDGMENT Ashwani Kumar Mishra,J. 1. This writ petition challenges an order of punishment against the petitioner on 1st April, 1999, as affirmed in appeal on 1/6th of July, 1999, contained in Annexures-1 and 2 to the writ petition. 2. Brief facts, giving rise to filing of the writ petition, are that petitioner was appointed as Junior Supervisor in the respondent National Thermal Power Corporation in 1983. Disciplinary proceedings were initiated against the petitioner with service of a chargesheet upon him on 19.5.1995, accusing the petitioner of having raised false medical claims by making false entries/corrections in his own handwriting in Prescription slips, OPD Card, Cash Memos of doctors as well as that of AIIMS, New Delhi, with intention of enriching himself by fraudulent means. Petitioner submitted reply to the chargesheet, denying the charges levelled. An enquiry proceeded in the matter, which resulted in a finding of guilt returned by enquiry officer against the petitioner, vide his enquiry report dated 23rd September, 1998. A show cause notice thereafter was issued to the petitioner on 5th October, 1998. The show cause notice was replied by the petitioner on 14th January, 1999. The disciplinary authority found the charges levelled against the petitioner to be proved, and consequently, an order of dismissal from service was passed against the petitioner on 1.4.1999. Aggrieved by the order of punishment, petitioner preferred an appeal on 10.4.1999, which came to be rejected by the appellate authority on 1/6th of July, 1999. The order of disciplinary authority, as affirmed in appeal, are under challenge in the present writ petition. 3. Learned counsel for the petitioner has challenged the orders impugned on the following grounds: - (i). The enquiry proceedings were not conducted in accordance with law, and stood vitiated, inasmuch as petitioner was denied cross examination of 10 witnesses, and according to petitioner, such grounds, urged in reply to the show cause notice as well as in appeal, have not been considered. (ii). The documents, which has been submitted by petitioner, have not been considered, and there is complete non-application of mind in the orders of the authorities, in so far as consideration of petitioner's defence is concerned. (iii).
(ii). The documents, which has been submitted by petitioner, have not been considered, and there is complete non-application of mind in the orders of the authorities, in so far as consideration of petitioner's defence is concerned. (iii). It is then contended that prosecution witnesses have not supported the charges levelled against the petitioner, and have rather admitted that no forgery were committed in the claim submitted by the petitioner, and that in view of such evidence, the charges were not proved on merits at all, but this aspect has escaped consideration. Reply to the show cause notice has also not been considered, inasmuch as none of the pleas taken in the reply to the show cause notice have been specifically dealt with or discussed in the matter. (iv). Last but not the least, it is submitted that the appellate order is a non-reasoned order, and in view of the law settled, the appellate order cannot be sustained. 4. Learned counsel for the respondent Corporation disputes the submission advanced on behalf of petitioner. It is contended that disciplinary proceedings had been conducted strictly in accordance with law; that the documents submitted by petitioner in his defence were duly taken note of; that the prosecution witnesses have supported the case of employer, and therefore, the charges are made out; that the reply to show cause notice has been considered. Learned counsel further submits that as the disciplinary authority has passed a reasoned order, and the appellate authority had endorsed the reasons so taken therein, as such, there is no requirement of passing a reasoned order by the appellate authority. 5. Rival submissions, noticed above, fall for consideration in the present writ petition. 6. To start with the last submission, first, it would be appropriate to refer to Rule 32 of the Powergrid Conduct Discipline and Appeal Rules, which regulates the service conditions of the petitioner, and provides for appeal. Rule 32 is reproduced: - "Rule 32. Appeals (1) An employee may appeal against an order imposing upon him any of the penalties specified in Rule 23 or against the order of suspension referred to in Rule 20. The appeal shall lie to the authority specified in the Annexure I. (2) An appeal shall be preferred within one month from the date of communication of the order appealed against.
The appeal shall lie to the authority specified in the Annexure I. (2) An appeal shall be preferred within one month from the date of communication of the order appealed against. The appeal shall be addressed to the Appellate Authority specified in the Annexure I and submitted to the authority whose order is appealed against. The authority whose order is appealed against shall forward the appeal together with its comments and the records of the case to the appellate authority within 15 days. The appellate authority shall consider whether the findings are justified or whether the penalty is excessive or inadequate and pass appropriate orders within three months of the date of appeal. The appellate authority may pass order confirming, enhancing, reducing or setting aside the penalty, or remitting the case to the authority which imposed the penalty, or to any other authority with such direction as it may deem fit in the circumstances of the case. Provided that if the enhanced penalty which the appellate authority proposes to impose is a major penalty specified in clause(e), (f) and (g) of Rule 23 and an inquiry as provided in Rule 25 has not already been held in the case, the appellate authority shall direct that such an enquiry be held in accordance with the provisions of Rule 25 and thereafter consider the record of the inquiry and pass such orders as it may deem proper. If the appellate authority decides to enhance the punishment but an enquiry has already been held as provided in Rule 25, the appellate authority shall give a show-cause notice to the employee as to why the enhanced penalty should not be imposed upon him. The appellate authority shall pass final order after taking into account the representation, if any, submitted by the employee." 7. Sri Chandan Sharma, learned counsel appearing for the petitioner, submits that provisions of Rule 32 in categorical terms envisages application of mind on part of the appellate authority with reference to the order under challenge, and such application of mind can be reflected only by way of reasons assigned in the order itself. However, as the appellate order contains no reasons, the order of appellate authority itself is rendered without jurisdiction.
However, as the appellate order contains no reasons, the order of appellate authority itself is rendered without jurisdiction. Emphasis has been laid upon the language employed under sub-rule 2, which says that appellate authority shall consider whether the findings are justified, or whether the penalty is excessive or inadequate, and pass appropriate orders within three months of the date of appeal. The appellate authority under the rules has the discretion to pass an order confirming, enhancing, reducing or setting aside the penalty or remitting the case to the authority and impose the penalty, as it may deem fit in the facts and circumstances of the case. Submission is that the language employed in the rule is wide enough, and confers exhaustive powers upon the appellate authority to examine the order under challenge and to consider its validity, and as absolutely no reasons have been assigned, the obligation imposed upon the appellate authority of considering the cause has been completely given up. 8. The order passed by the appellate authority, which is enclosed as Annexure-13 to the writ petition, merely notices that an order of dismissal was imposed upon the petitioner, and that an appeal has been filed before the appellate authority for quashing the order of punishment. The order further records that having carefully gone through the said appeal and order, the appellate authority had come to the conclusion that petitioner has not brought out any material in his appeal, warranting review of the penalty imposed, and consequently the appeal is rejected. This Court finds that absolutely no reasons have been recorded by the appellate authority for coming to the conclusion, so arrived at in the appellate order. It is settled that reasons are the soul of an order, and in its absence, such order is rendered lifeless. The law in this regard is settled. Reliance is placed upon judgment of the Apex Court in Divisional Forest Officer, Kothagudem and others Vs. Madhusudhan Rao, reported in 2008 (3) SCC 469 , in which following observations are made in paragraphs 19 and 20: - "19.
The law in this regard is settled. Reliance is placed upon judgment of the Apex Court in Divisional Forest Officer, Kothagudem and others Vs. Madhusudhan Rao, reported in 2008 (3) SCC 469 , in which following observations are made in paragraphs 19 and 20: - "19. Having considered the submissions made on behalf of the respective parties and also having regard to the detailed manner in which the Andhra Pradesh Administrative Tribunal had dealt with the matter, including the explanation given regarding the disbursement of the money received by the respondent, we see no reason to differ with the view taken by the Administrative Tribunal and endorsed by the High Court. No doubt, the Divisional Forest Officer dealt with the matter in detail, but it was also the duty of the appellate authority to give at least some reasons for rejecting the appeal preferred by the respondent. A similar duty was cast on the revisional authority being the highest authority in the Department of Forests in the State. Unfortunately, even the revisional authority has merely indicated that the decision of the Divisional Forest Officer had been examined by the Conservator of Forests, Khammam wherein the charge of misappropriation was clearly proved. He too did not consider the defence case as made out the respondent herein and simply endorsed the punishment of dismissal though reducing it to removal from service. 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." 9. Again in Director (Marketing), Indian Oil Corporation Ltd. and another Vs. Santosh Kumar, reported in 2006 (11) SCC 147 , following observations have been made in Paragraph-11: - "11. A perusal of the order passed by the Appellate Authority would only reveal the total non-application of mind by the Appellate Authority.
Again in Director (Marketing), Indian Oil Corporation Ltd. and another Vs. Santosh Kumar, reported in 2006 (11) SCC 147 , following observations have been made in Paragraph-11: - "11. A perusal of the order passed by the Appellate Authority would only reveal the total non-application of mind by the Appellate Authority. We, therefore, have no other option except to set-aside the order passed by the Disciplinary Authority and the Appellate Authority and remit the matter for fresh disposal to the Disciplinary Authority. The Disciplinary Authority shall consider the detailed representation made by the respondent and also consider the detailed report of the Enquiry Officer and the records placed before him in its proper perspective and decide the matter afresh on merits. The Disciplinary Authority is directed to consider the entire case only on the basis of records already on record. The respondent is not permitted to place any further material or record before the Disciplinary Authority. The order passed by the High Court is set-aside for the above reason. We also set-aside the direction issued by the High Court ordering re-instatement into service with continuity in service and all consequential benefits. The Disciplinary Authority is also directed to dispose of the matter, within three months from the date of receipt of this order, after affording an opportunity to both the parties. The Civil Appeal is disposed of accordingly. No order as to costs." 10. Reliance has also been placed upon a decision of the Apex Court in Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney and others, reported in 2009 (4) SCC 240 , in which following proposition has been laid down in paragraphs-8 to 11: - "8. The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in the case of S.N. Mukherjee Vs. Union of India reported in (1990) 4 SCC 594 , is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind or not? Also, giving of reasons minimizes chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation. 9.
Also, giving of reasons minimizes chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation. 9. No doubt, in S.N.Mukherjee's case (supra), it has been observed (vide para 36) that: "36. ... The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge." The above observation, in our opinion, really means that the order of affirmance need not contain an elaborate reasoning as contained in the order of the original authority, but it cannot be understood to mean that even brief reasons need not be given in an order of affirmance. To take a contrary view would mean that appellate authorities can simply dismiss appeals by one line orders stating that they agree with the view of the lower authority. 10. For the same reason, the decision of this Court in State of Madras vs. Srinivasan, AIR 1966 SC 1827 (vide para 15) has also to be understood as explained by us above. 11. Hence, we agree with the High Court that reasons should have been contained in the appellate authority's order, but we cannot understand why the High Court has set aside the order of the disciplinary authority, in addition to setting aside the appellate order." 11. Similar view has been expressed in Shantilal Son of Rameshwar Vs. State Of Rajasthan AIR 1976 SC 739 , Siemens Engineering & Manufacturing Co. of India Ltd. Vs. Union Of India & Anr AIR 1976 SC 1785 , G. Vallikumari Vs. Andhra Education Society and others (2010) 2 SCC 497 , and Kranti Associates Private Limited and Another Vs. Masood Ahmed Khan and Others (2010) 9 SCC 496 . 12. In view of the settled principles of law, noticed above, once the appellate order is examined, this Court finds that the order does not withstand the test of judicial scrutiny. The appellate order, consequently, cannot be sustained, and is set aside. 13. The matter is remitted back to the appellate authority for consideration of petitioner's appeal, strictly in accordance with law, keeping in view the legal parameters settled for the purpose, some of which have been referred to above.
The appellate order, consequently, cannot be sustained, and is set aside. 13. The matter is remitted back to the appellate authority for consideration of petitioner's appeal, strictly in accordance with law, keeping in view the legal parameters settled for the purpose, some of which have been referred to above. It shall be open for the parties to supplement their claim, and to rely upon such materials, as they intend to produce before the appellate authority. This observation has been made keeping in view the statement made by learned counsel for the respondents that most of the original records may have been weeded out by now. However, no conclusive opinion on such submission is being expressed, at this stage. The appellate authority shall make all endeavours to dispose of the appeal, within a period of four months from the date of presentation of a certified copy of this order. Since this Court has set aside the appellate order and the matter is being remitted back for a fresh consideration of appeal, there exists no occasion for this Court to consider and adjudicate other submissions advanced on behalf of petitioner, and all such questions are left open to be considered in appeal. 14. The writ petition is, accordingly, disposed of.