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2017 DIGILAW 1322 (HP)

Roshan Parvez v. Central Administrative Tribunal

2017-12-01

AJAY MOHAN GOEL, SANJAY KAROL

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JUDGMENT : Ajay Mohan Goel, J. 1. By way of this writ petition, the petitioner has prayed mainly for the following reliefs: “(i) That the order of the Central Administrative Tribunal dated 12.12.2008 passed in Original Application No. 494/HP/2003 titled Roshan Parvez vs. Union of India and Others, may be quashed and set aside. (ii) That the order dated 16.10.2002 passed by the Appellate Authority imposing the penalty of compulsory retirement may be quashed and set aside.” 2. Brief facts necessary for adjudication of the present petition are as under: 3. Vide memo dated 06.02.1998, the petitioner was informed by the respondent department that it intended to hold an inquiry against him under Rule 14 of CCS (CCA) Rules, 1965 on charges which find mentioned in articles of charge and the petitioner was called upon to submit his written statement of defence to the articles of charge. Statement of articles of charge so framed against the petitioner reads as under:- “STATEMENT OF ARTICLES OF CHARGE FRAMED AGAINST SHRI ROSHAN PARVEZ, ACIO-I/G, SIB SHIMLA. Article-I That the said Shri Roshan Parvez while posted as ACIO-I/G, Dharamshala indulged in an act unbecoming of a government servant in violation of Rule 3(1)(iii) & Rule 22(b) & (d) of CCS (Conduct) Rules, 1964 by taking excess intoxicating drinks and obstructing the staff of the office of ACIO-I, Chamba to perform their duties properly on 17.8.1997. Article-II That the said Shri Roshan Parvez while functioning as ACIO-I/G, Dharamshala failed to maintain devotion to duty in violation of Rule 3(1)(ii) of CCS (Conduct) Rules, 1964 by remaining absent from duty unauthorisedly on 19.12.1997 without any intimation and reason when the CIO, Shimla was to inspect the post. Article-III That the said Shri Roshan Parvez while functioning as ACIO-I/G, Dharamshala failed to maintain devotion to duty in violation of Rule 3(1)(ii) of CCS (Conduct) Rules, 1964 by remaining absent unauthorisedly and without any intimation to his superior authorities for the period from 17.11.1997 to 25.11.1997. Article-IV That the said Shri Roshan Parvez while posted as ACIO-I/G, Dharamshala indulged in an act unbecoming of a government servant in violation of Rule 3(1)(iii) & Rule 22(b) & (d) of CCS (Conduct) Rules, 1964 by taking excess liquor and slapping Shri O.C. Thakur, ACIO-I/G, Bilaspur at Bilaspur on 22.12.1997. 4. Petitioner filed his reply to the articles of charge. 4. Petitioner filed his reply to the articles of charge. As the Disciplinary Authority was not satisfied with the response so filed by the petitioner, it accordingly appointed an Inquiry Officer and ordered a departmental inquiry against the petitioner. The Inquiry Officer filed his report before the Disciplinary Authority and vide memorandum dated 15.02.1999, Disciplinary Authority forwarded a copy of the said report to the petitioner and called upon him to submit his representation or submissions against the same before any suitable decision was taken by the Disciplinary Authority. As is evident from the inquiry report, the Inquiry Officer held that all the four articles of charge stood proved against the petitioner. Disciplinary Authority vide order dated 10.11.2000 imposed a penalty of dismissal from service upon the petitioner with immediate effect and the period of unauthorized absence of the petitioner from duty from 17.11.1997 to 25.11.1997 was ordered to be treated as dies-non. 5. Feeling aggrieved, the petitioner filed an appeal. Appellate Authority vide order dated 16.10.2002 did not interfere with the findings of guilt returned against the petitioner in the inquiry report but it modified the penalty imposed upon the petitioner by the Disciplinary Authority to that of compulsory retirement. 6. Feeling aggrieved, the petitioner filed O.A. No. 494/HP/2003 before the learned Tribunal. The same was dismissed by the learned Tribunal vide order dated 12.12.2008 and in para 13 thereof, it held as under:- “13. In view of these findings of the Courts and catena of judgments in similar cases, the consistent view has been that the interference by this Tribunal in such matter is limited and on the touchstone of these observations, we do not feel it necessary to interfere with the impugned orders as the appellate authority after application of mind and after going through the record (including the advice of the UPSC which is mandatory though advisory in nature) have reduced the punishment of dismissal to that of compulsory retirement. Resultantly, the O.A. is found to be devoid of merits and is hereby disposed of. No costs.” 7. After dismissal of his original application, the petitioner has filed the present petition praying for the reliefs already enumerated hereinabove. 8. We have heard learned counsel for the parties and have also gone through the order passed by the learned Tribunal alongwith records of the case. 9. No costs.” 7. After dismissal of his original application, the petitioner has filed the present petition praying for the reliefs already enumerated hereinabove. 8. We have heard learned counsel for the parties and have also gone through the order passed by the learned Tribunal alongwith records of the case. 9. It is a matter of record that the Disciplinary Authority imposed a penalty of dismissal from service upon the petitioner. In appeal, the order so passed by the Disciplinary Authority, was modified to that of compulsory retirement. Findings so returned by the Appellate Authority stand upheld by the learned Tribunal vide its order under challenge. 10. We are of the considered view that the findings returned by both the authorities below and upheld by the learned Tribunal that the articles of charges so framed against the petitioner stood proved against him, stand established from the record. 11. Before proceeding any further, we may first address the issue raised by the learned counsel for the petitioner that the entire inquiry conducted against the petitioner is vitiated on account of there being two inquiry reports on record. 12. In our considered view, this contention of the learned counsel for the petitioner is without any merit. We say so for the reason that pursuant to the directions issued by this Court, a supplementary affidavit was filed on behalf of respondents No. 2 to 4 to clarify the position with regard to fresh inquiry report figuring at page 107 of the paper book. This affidavit has been filed by Mr. P.C. Chauhan, Joint Deputy Director, Subsidiary Intelligence Bureau, Shimla. Relevant portion of the affidavit is quoted herein-below: “4. That the deponent further submits that pursuant to this, the petitioner submitted his brief on 08.10.1999 as a result of repeated opportunities given to him by the Disciplinary Authority/Presenting Officer. The deponent further submits that there is only one inquiry report, which was submitted by the Inquiry Officer on 15.02.1999 and the report sent alongwith the covering letter dated 05.11.1999 is not a fresh inquiry report as the same has been given on submission of written brief by the petitioner. It is further submitted that no fresh inquiry was conducted, as such, there was no occasion for submitting a fresh inquiry report. It is further submitted that no fresh inquiry was conducted, as such, there was no occasion for submitting a fresh inquiry report. The nomenclature of fresh inquiry report has been wrongly/loosely used in the letter, otherwise except for few lines referring to the opportunities given to the petitioner to submit his representation, there is no change in Annexures P-3 and P-5. There was no occasion for the fresh inquiry report as inquiry had already been concluded and report had already been submitted and the petitioner was also given an opportunity to make representation against the inquiry report by the Disciplinary Authority.” 13. The averments so made in this affidavit have not been controverted by any counter affidavit by the petitioner. 14. Having gone through the averments made in the supplementary affidavit and having heard learned counsel for the parties, we are satisfied that there were no two inquiry reports and there is only one inquiry report so submitted by the Inquiry Officer on 15.10.1999. 15. The contention of the learned counsel for the petitioner that the departmental proceedings stand vitiated as the procedure so prescribed under the CCS (CCA) Rules was not followed, also deserves rejection. 16. We find from the records that the petitioner was duly associated with the proceedings, which were so conducted against him by the Inquiry Officer. There is nothing on record from which it can be inferred that during pendency of the inquiry proceedings, the petitioner raised any objection before the appropriate authority either on the fairness of the Inquiry Officer or over the procedure, which was so adopted by the Inquiry Officer. 17. A perusal of the response, which was filed by the petitioner to the memo dated 06.02.1998, demonstrates that he has not in so many words denied the allegations contained in the articles of charges, but has tried to give his justification in that regard. Be that as it may, allegations leveled in articles of charges against the petitioner, were serious. A perusal of the inquiry report demonstrates that it stands mentioned therein that all the witnesses were examined by the Presenting Officer in the presence of the petitioner and the petitioner cross-examined S/Sh. N.W. Bhutia, P.C. Chauhan and Onkar Chand Thakur. Despite opportunities having been granted to cross-examine the other witnesses, he did not do so. 18. A perusal of the inquiry report demonstrates that it stands mentioned therein that all the witnesses were examined by the Presenting Officer in the presence of the petitioner and the petitioner cross-examined S/Sh. N.W. Bhutia, P.C. Chauhan and Onkar Chand Thakur. Despite opportunities having been granted to cross-examine the other witnesses, he did not do so. 18. During the course of arguments, learned counsel for the petitioner tried to demonstrate that the Inquiry Officer had conducted inquiry proceedings in an unfair manner, by submitting, that the statements of the department witnesses were recorded after the statements of witnesses of delinquent officer were recorded. However, when we perused the record of the case, we find the said contention of the petitioner to be incorrect. 19. Sh. N.W. Bhutia was examined on 17.8.1998, Sh. Onkar Chand Thakur was examined on 28.8.1998, Sh. Des Raj was examined on 28.8.1998 and Sh. Rakesh Kundi was examined on 4.9.1998. Thereafter, there is on record statement of the petitioner which was recorded on 4.9.1998. Besides this, no such objection at any stage in this regard, was taken by the petitioner either before the Inquiry Officer or before any superior authority. Therefore, we do not find any force in the said contention of the learned counsel for the petitioner. 20. We find that after the inquiry report was submitted to the Disciplinary Authority by the Inquiry Officer, the same was duly forwarded to the petitioner to enable him to make a representation against the same. It was only thereafter that the Disciplinary Authority passed an order of imposing penalty of dismissal from service upon the petitioner. The petitioner availed his right of appeal against the said order and the Appellate Authority in exercise of its appellate powers, modified the penalty of dismissal from service so imposed upon the petitioner to that of compulsory retirement. This also demonstrates that the procedure prescribed under the relevant rules, wherein the delinquent officer had a right to assail the findings returned by the Disciplinary Authority, was not only availed by the delinquent officer, but he also partially succeeded in an appeal so filed by him. 21. It is well settled law that the decision so taken by the Disciplinary Authority or the Appellate Authority, is not to be interfered by this Court in exercise of its powers of judicial review until and unless the decision shocks conscious of the Court. 21. It is well settled law that the decision so taken by the Disciplinary Authority or the Appellate Authority, is not to be interfered by this Court in exercise of its powers of judicial review until and unless the decision shocks conscious of the Court. In the present case, the petitioner assailed the order so passed by the Disciplinary Authority and the Appellate Authority before the learned Tribunal. Vide order dated 12.12.2008, the learned Tribunal by way of well reasoned and well objected order dismissed the original application so filed by the petitioner. Findings returned by the learned Tribunal while upholding the order so passed by the Appellate Authority and dismissing the original application so filed by the petitioner, are duly borne out from the record of the case. No procedural infirmity was committed by the learned Tribunal while arriving at the conclusion of the said order. 22. It is also settled law that the Courts will not act as an Appellate Court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. The Courts will not interfere with the findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. 23. The Hon’ble Supreme Court in State Bank of Bikaner and Jaipur vs. Nemi Chand Nalwaya, (2011) 4 SCC 584 , has held that the test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala-fide or based on extraneous considerations. The Hon’ble Supreme Court in S.R. Tewari vs. Union of India and Another, (2013) 6 SCC 602 has held: “23. The Court must keep in mind that judicial review is not akin to adjudication on merit by re-appreciating the evidence as an Appellate Authority. The Hon’ble Supreme Court in S.R. Tewari vs. Union of India and Another, (2013) 6 SCC 602 has held: “23. The Court must keep in mind that judicial review is not akin to adjudication on merit by re-appreciating the evidence as an Appellate Authority. Thus, the Court is devoid of the power to re-appreciate the evidence and come to its own conclusion on the proof of a particular charge, as the scope of judicial review is limited to the process of making the decision and not against the decision itself and in such a situation the Court cannot arrive on its own independent finding. (Vide: High Court of Judicature at Bombay through its Registrar vs. Udaysingh S/o Ganpatrao Naik Nimbalkar and Others, AIR 1997 SC 2286 ; Government of Andhra Pradesh and Others vs. Mohd. Nasrullah Khan, AIR 2006 SC 1214 and Union of India and Others vs. Manab Kumar Guha, (2011) 11 SCC 535 ). 24. The question of interference on the quantum of punishment, has been considered by this Court in a catena of judgments, and it was held that if the punishment awarded is disproportionate to the gravity of the misconduct, it would be arbitrary and thus, would violate the mandate of Article 14 of the Constitution. In Ranjit Thakur vs. Union of India and Others, AIR 1987 SC 2386 , this Court observed as under: “25. 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 an 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. 27. In the present case, the punishment is so strikingly disproportionate as to call for and justify interference. 27. In the present case, the punishment is so strikingly disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review.” (Emphasis supplied) (See also: Union of India and Another vs. G. Ganayutham (dead by LRs.), AIR 1997 SC 3387 ; State of Uttar Pradesh and Others vs. J.P. Saraswat, (2011) 4 SCC 545 ; Chandra Kumar Chopra vs. Union of India and Others, (2012) 6 SCC 369 and High Court of Patna vs. Pandey Gajendra Prasad and Others, AIR 2012 SC 2319 ).” 25. In B.C. Chaturvedi vs. Union of India and Others, AIR 1996 SC 484 , this Court after examining various its earlier decisions 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. In a given case, the prevailing circumstances might have forced the accused to act in a certain manner though he had not intended to do so. The Court may further examine the effect, if the order is set aside or substituted by some other penalty. However, 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. 26. The Court may further examine the effect, if the order is set aside or substituted by some other penalty. However, 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. 26. In V. Ramana vs. A.P.S.R.T.C. and Others, AIR 2005 SC 3417 , this Court considered 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 conscience 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, in exceptional and rare cases, the Court itself can impose appropriate punishment by recording cogent reasons in support thereof. 27. In State of Meghalaya and Others vs. Mecken Singh N. Marak, AIR 2008 SC 2862 , this Court observed that: “13........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. 14. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The punishment imposed by the Disciplinary Authority or the Appellate Authority unless shocks the conscience of the Court, cannot be subjected to judicial review. (See also: Depot Manager, A.P.S.R.T.C. vs. P. Jayaram Reddy, (2009) 2 SCC 681 ).” 28. The role of the Court in the matter of departmental proceedings is very limited and the Court cannot substitute its own views or findings by replacing the findings arrived at by the authority on detailed appreciation of the evidence on record. In the matter of imposition of sentence, the scope for interference by the Court is very limited and restricted to exceptional cases. In the matter of imposition of sentence, the scope for interference by the Court is very limited and restricted to exceptional cases. The punishment imposed by the Disciplinary Authority or the Appellate Authority unless shocking to the conscience of the Court, cannot be subjected to judicial review. The Court has to record reasons as to why the punishment is disproportionate. Failure to give reasons amounts to denial of justice. The mere statement that it is disproportionate would not suffice. (Vide: Union of India and Others vs. Bodupalli Gopalaswami, (2011) 13 SCC 553 and Sanjay Kumar Singh vs. Union of India and Others, AIR 2012 SC 1783 ). 24. In Chief Executive Officer, Krishna District Cooperative Central Bank Ltd. and Another vs. K. Hanumantha Rao and Another, (2017) 2 SCC 528 , the Hon’ble Supreme Court, while discussing the scope of judicial review of interfering with the order of punishment has held as under:- “7.2. Even otherwise, the aforesaid reason could not be a valid reason for interfering with the punishment imposed. It is trite that Courts, while exercising their power of judicial review over such matters, do not sit as the Appellate Authority. Decision qua the nature and quantum is the prerogative of the disciplinary authority. It is not the function of the High Court to decide the same. It is only in exceptional circumstances, where it is found that the punishment/penalty awarded by the disciplinary authority/employer is wholly disproportionate, that too to an extent that it shakes the conscience of the Court, that the Court steps in and interferes. 7.2.1. No doubt, the award of punishment, which is grossly in excess to the allegations, cannot claim immunity and remains open for interference under limited scope for judicial review. This limited power of judicial review to interfere with the penalty is based on the doctrine of proportionality which is a well recognised concept of judicial review in our jurisprudence. The punishment should appear to be so disproportionate that it shocks the judicial conscience. (See State of Jharkhand and Others vs. Kamal Prasad and Others. It would also be apt to extract the following observations in this behalf from the judgment of this Court in Deputy Commissioner, Kendriya Vidyalaya Sangthan and Others vs. J. Hussain: “8. The punishment should appear to be so disproportionate that it shocks the judicial conscience. (See State of Jharkhand and Others vs. Kamal Prasad and Others. It would also be apt to extract the following observations in this behalf from the judgment of this Court in Deputy Commissioner, Kendriya Vidyalaya Sangthan and Others vs. J. Hussain: “8. The order of the Appellate Authority while having a re-look at the case would, obviously, examine as to whether the punishment imposed by the disciplinary authority is reasonable or not. If the Appellate Authority is of the opinion that the case warrants lesser penalty, it can reduce the penalty so imposed by the disciplinary authority. Such a power which vests with the Appellate Authority departmentally is ordinarily not available to the Court or a Tribunal. The Court while undertaking judicial review of the matter is not supposed to substitute its own opinion on reappraisal of facts. (See UT of Dadra & Nagar Haveli vs. Gulabhia M. Lad, (2010) 5 SCC 775 : (2010) 2 SCC (L&S) 101). In exercise of power of judicial review, however, the Court can interfere with the punishment imposed when it is found to be totally irrational or is outrageous in defiance of logic. This limited scope of judicial review is permissible and interference is available only when the punishment is shockingly disproportionate, suggesting lack of good faith. Otherwise, merely because in the opinion of the Court lesser punishment would have been more appropriate, cannot be a ground to interfere with the discretion of the departmental authorities. 9. When the punishment is found to be outrageously disproportionate to the nature of charge, principle of proportionality comes into play. It is, however, to be borne in mind that this principle would be attracted, which is in tune with the doctrine of Wednesbury - Associated Provincial Picture Houses Ltd. vs. Wednesbury Corporation, (1948) 1 KB 223 : (1947) 2 All ER 680 (CA) rule of reasonableness, only when in the facts and circumstances of the case, penalty imposed is so disproportionate to the nature of charge that it shocks the conscience of the Court and the Court is forced to believe that it is totally unreasonable and arbitrary. This principle of proportionality was propounded by Lord Diplock in Council of Civil Service Unions vs. Minister for the Civil Service, 1985 AC 374 : (1984) 3 WLR 1174 : (1984) 3 All ER 935 (HL) in the following words: (AC p. 410 D-E). “.........Judicial review has, I think developed to a stage today when without reiterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads of the grounds upon which administrative action is subject to control by judicial review. The first ground I would call illegality the second irrationality and the third procedural impropriety. This is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of proportionality..........” 25. Recently, the Hon’ble Supreme Court in Mihir Kumar Hazara Choudhary vs. Life Insurance Corporation and Another, (2017) 9 SCC 404 has reiterated the scope of judicial review in the case of departmental inquiry as under:- “30. As held supra, the departmental proceedings were conducted strictly in accordance with law by following the principle of natural justice in which the appellant duly participated. The appellant neither set up any defence nor denied the factum of charges, yet the respondent proved the charges with the aid of relevant evidence, which found acceptance with the Division Bench and this Court too. As an Appellate Court, neither we can sit over the findings of the Enquiry Officer and find fault in it nor can we re-appreciate the evidence of witnesses examined in departmental Enquiry.” 26. In our considered view, the petitioner has failed to demonstrate that either the Inquiry Officer or the Appellate Authority or the learned Tribunal committed any procedural irregularity, while dealing with the matter. In our considered view, the petitioner has failed to demonstrate that either the Inquiry Officer or the Appellate Authority or the learned Tribunal committed any procedural irregularity, while dealing with the matter. Further, in our considered view, taking into consideration the response, which was so submitted by the petitioner to the memo, which was initially served upon him, on the basis of which inquiry was conducted as well as the inquiry report and the findings returned by the Disciplinary Authority, the Appellate Authority and the learned Tribunal, it cannot be said that the findings of guilt returned by the Disciplinary Authority against the petitioner, are not borne out from the record or that the punishment of compulsory retirement imposed upon him by the Appellate Authority, is either harsh or disproportionate. Taking into consideration the charges, which were framed against the petitioner, order of compulsory retirement passed by the Appellate Authority, cannot be said to be harsh or disproportionate. Even otherwise, it is not for this Court to substitute the well reasoned findings returned by the Appellate Authority, because this Court is not to go into the factual matrix of the matter and sit over the decision so passed by the Disciplinary Authority, as if this Court was exercising powers as an Appellate Court. Besides this, we have already held above that the order passed by the learned Tribunal is well reasoned order and the findings returned by it are duly borne out from the record of the case and the same do not call for any interference. 27. In view of the above, we find no merit in the present writ petition and the same is accordingly dismissed. Pending applications, if any, also stand disposed of.