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2017 DIGILAW 237 (RAJ)

Tulsiram v. Union of India

2017-01-19

NAVIN SINHA, VIJAY KUMAR VYAS

body2017
JUDGMENT : 1. The present writ petition assails the order dated 29/05/2015 by the Central Administrative Tribunal, Jaipur Bench, Jaipur dismissing O.A. No. 291/00265/2014 declining to interfere with the order of punishment dated 29/06/2013 pursuant to a departmental proceeding imposing reduction of pay by one stage for one year with cumulative effect. 2. Learned Counsel for the petitioner sought to persuade us that the order of punishment, order of the appellate authority and that of the Tribunal were unsustainable on more than one ground. Considering that our jurisdiction in judicial review under Article 226 over an order of punishment pursuant to a departmental proceeding is restricted to examination of the decision making process only and not the merits of the decision, we consider one ground raised by the Counsel for the petitioner as sufficient for deciding the writ petition. Therefore we shall take note of the facts of the case only to the extent necessary for purposes of the present order. 3. A memorandum of two charges was served upon the petitioner on 21/02/2012. Both the charges were inter-connected and shall be noticed cumulatively. On 29/12/2011, while media personnel had come to visit the carriage workshop, the petitioner interacted with them in an unauthorised manner by crossing the shop floor also spoiling the image of the department constituting an offence under Railway Service (Conduct) Rules, 1966. 4. The enquiry report returned a finding of guilt on 14/03/2013. The petitioner preferred an appeal inter-alia raising the objection that the person on whose complaint the charges were framed and enquiry held was appointed the enquiry officer. The submission on behalf of the petitioner was that the enquiry officer could not have been a witness himself. The further contention was that this objection raised specifically in the appeal has not been decided by the appellate authority order dated 08/04/2014 except for observing that it was not true with no further reasons assigned. If an appellate order was open to challenge in judicial review it had to be reasoned why the objection taken by the petitioner that the enquiry officer and the complainant were the same was factually wrong by disclosing of reasons, albeit the names of the two persons as different individuals. An order which is not reasoned smacks of arbitrariness displaying of non-application of mind. 5. If that were not enough, the parties were at issue on the question before the Tribunal. An order which is not reasoned smacks of arbitrariness displaying of non-application of mind. 5. If that were not enough, the parties were at issue on the question before the Tribunal. The petitioner specifically asserted this fact with the respondent denying the same. There was thus a lis before the Tribunal whether the complainant and the enquiry officer were the same person. The Tribunal failed to decide this question specifically and skirted the issue by observing that the enquiry officer had been changed at the request of the petitioner. Even if that were so it would not justify appointing the complainant as the enquiry officer. The petitioner is stated to have superannuated on 31/12/2015. 6. Learned counsel for the respondents submitted that if this Court was not satisfied on facts, the matter may be remanded for giving of reasons. Cumulatively, it was submitted that if there was material howsoever minimum, in support of the charge, the court should not interfere in an order of punishment passed in a departmental proceeding. No prejudice has been caused to the petitioner as he had full opportunity of defence as also remedy of appellate forum. Reliance was placed on AIR 1963 SC 1723 : State of A.P. v. S. Sree Rama Rao. Reliance was further placed on (1994) 2 SCC 537 : State Bank of India & Ors. v. Samarendra Kishore Endow in support of the submission that the jurisdiction of the Court in judicial review over an order of punishment is limited to examine the errors in the decision making process only. 7. It is trite law that no man can be a judge in his own cause and that justice must not only be done but must appear to be done. The petitioner raised a specific objection in appeal that the complainant was the enquiry officer. The appellate authority denied it simpliciter without any reasons by the finding that it was not correct. It being a pure question of fact the order had to be reasoned especially when it was amenable to judicial review. Likewise, the petitioner before the Tribunal specifically raised the issue with the respondent denying it but the Tribunal did not return any finding on it factually. 8. Reference may be made to (2008) 8 SCC 236 : State of Uttaranchal & Ors. v. Kharak Singh observing as follows:- "15. Likewise, the petitioner before the Tribunal specifically raised the issue with the respondent denying it but the Tribunal did not return any finding on it factually. 8. Reference may be made to (2008) 8 SCC 236 : State of Uttaranchal & Ors. v. Kharak Singh observing as follows:- "15. From the above decisions, the following principles would emerge: (ii) If an officer is a witness to any of the incidents which is the subject matter of the enquiry or if the enquiry was initiated on a report of an officer, then in all fairness he should not be the Enquiry Officer. If the said position becomes known after the appointment of the Enquiry Officer, during the enquiry, steps should be taken to see that the task of holding an enquiry is assigned to some other officer." 9. The allegations against the petitioner are related to interaction with the media personnel and crossing the shop floor. There are no serious allegations of financial misdemeanor, embezzlement or misappropriation. The petitioner was charge-sheeted in 2012, faced an enquiry and has now been superannuated. The travails that he had to go through in facing departmental enquiry, filing more than one application before the Tribunal and this Court, we consider it sufficient in the facts of the present case for the allegations levelled against him and are of the considered opinion that in the nature of the charges, he should now be left in peace after his superannuation. Therefore we do not consider the present a fit case to remand it to the appellate authority. 10. S. Sree Rama Rao (supra) and Samarendra Kishore Endow (supra) did not consider the issue with regard to the enquiry officer being a judge of his own case and therefore has no relevance in the present issue. 11. The order of punishment dated 29/06/2013 is set-aside. 12. The writ petition is allowed.