Research › Search › Judgment

Allahabad High Court · body

2018 DIGILAW 126 (ALL)

ASHRAF KHAN v. CENTRAL ADMINISTRATIVE TRIBUNAL

2018-01-12

PANKAJ MITHAL, SARAL SRIVASTAVA

body2018
JUDGMENT By the Court.—The petitioner was working as a Ticket Collector with the Railways. It is alleged that he absented himself from duty on 20.9.2003 and 7.10.2003 and that he made forcibly entries in the relevant records showing his presence on the aforesaid dates. Accordingly, he was charge-sheeted on 20.10.2003 and on the basis of the ex parte enquiry report dated 7.5.2004 he was punished vide order dated 24.5.2004 with penalty of removal from service. His departmental appeal was dismissed but the revision thereof was allowed in part vide order dated 6.10.2004 and the punishment of removal from service was reduced to that of reversion to class IV post in the grade of Rs. 2,550-3,200 with pay of Rs. 2,720/- for a period of 11 years with cumulative effect. These orders were challenged by the petitioner before the Central Administrative Tribunal, Allahabad but the challenge has failed vide order of the tribunal dated 4th November 2011. 2. Aggrieved by the above orders the petitioner has preferred this writ petition. 3. We had heard Sri Ashok Khare, Senior counsel for the petitioner and Sri A.K. Gaur, learned counsel appearing for the Railways. 4. Learned counsel for the parties had agreed for final disposal of the petition at the stage of admission on the basis of the affidavits exchanged between them. 5. The submission of Sri Khare, learned counsel for the petitioner is that the order of punishment passed against the petitioner is based upon the ex parte enquiry report. The petitioner could not participate in the enquiry on account of his illness for which necessary information was furnished to the enquiry officer. The petitioner had faced another enquiry for unauthorized absence from 23.1.2004 to 10.2.2004. In the said enquiry he was exonerated and his absence was not held to be unauthorized rather it was accepted that he was ill during that period which establishes that the petitioner could not participate in the enquiry for a genuine cause. The enquiry report is not tenable in law as it gives the conclusion holding the petitioner guilty as he has failed to participate. The disciplinary authority has passed the punishment order without even considering the reply furnished by the petitioner in response to the show-cause notice. 6. The enquiry report is not tenable in law as it gives the conclusion holding the petitioner guilty as he has failed to participate. The disciplinary authority has passed the punishment order without even considering the reply furnished by the petitioner in response to the show-cause notice. 6. Sri A.K.Gaur, learned counsel for the Railways on the other hand argued that the writ petition challenges the order of the tribunal dated 4th November 2011 but was filed in January 2015 and as such it suffers from delay and laches. The petitioner was given sufficient opportunity by the enquiry officer but as he failed to turn up, he had no option but to proceed ex parte against him. The absence of the petitioner on the aforesaid two dates and that he made false entries in the record is established by the oral evidence of the two witnesses. Therefore, there is no illegality in passing the order of punishment against the petitioner. 7. This petition was presented on 27th January 2015 and was reported to be beyond 90 days by one year and 353 days. It was entertained by the Division Bench by a speaking order on 16.2.2015 when the application for amendment was also moved and was allowed. The Court vide order dated 25.3.2015 had directed the respondents who were represented by a counsel to file counter-affidavit. Thus, the Court impliedly ignored the delay or laches in the filing of the petition and expressed opinion for consideration of the matter on merits on exchange of affidavits. 8. It may be noted that as of practice in this Court writ petitions are rarely admitted, as admission delays the hearing. The normal practice is to decide the petition on exchange of affidavits even without formally admitting them. In these circumstances when the petition has been entertained as stated above it is no use to dismiss it on the technical ground of delay and laches at this stage after exchange of affidavits, particularly when there is no statutory limitation for presenting a writ petition except for the self restrain of the Courts not to entertain any belated petition if presented after a normal period of limitation of 90 days. 9. The enquiry report dated 7.5.2004 shows that the petitioner had not attended the enquiry between 16.1.2004 till its conclusion on 23.2.2004 and the representative of the petitioner reported that the petitioner was sick. 9. The enquiry report dated 7.5.2004 shows that the petitioner had not attended the enquiry between 16.1.2004 till its conclusion on 23.2.2004 and the representative of the petitioner reported that the petitioner was sick. The enquiry proceeded ex parte as the petitioner failed to appear. The statement of three witnesses were recorded to the effect that the petitioner did not perform duties on 20.9.2003 and 7.10.203 and he singed the muster letter claiming his attendance. The enquiry officer concludes that as the petitioner has not made an effort to defend himself it is considered that he has accepted the charges. Secondly, the evidence on record and the statements are sufficient to prove the charges. 10. The argument is that in drawing the above conclusion the evidence on record was not analysed and mere non appearance of the petitioner does not amount to accepting the charges. 11. It is true that the petitioner had not participated in the enquiry but merely for the reason that he had not participated it cannot be held that he had accepted the charges, as in his written statement filed on 15.12.2003 he had sought time to submit documentary evidence and the list of witnesses. Secondly, we find that that the enquiry officer had not made any effort either to refer to the documentary evidence of the Railways to prove the charges and even failed to analyse the statement of the witnesses vis-a-vis the documentary evidence to prove him guilty. The mere narration of the facts stated by the witnesses by itself is not sufficient to prove the charges. 12. The Apex Court in Anil Kumar v. Presiding Officer, AIR 1985 SC 1121 : (1985) 3 SCC 378 , has opined where the proceeding of quasi judicial nature may result in deprivation of livelihood or in attaching a stigma it must indicate that the conclusion drawn by it is on application of mind and that it must be speaking in nature meaning thereby that it must contain reasons for conclusion. 13. The basic order of punishment dated 25.5.2004 which has been passed by the Deputy Commercial Manager, Jhansi as disciplinary authority reveal that relying upon the enquiry report and recording the fact that the petitioner was given adequate opportunity to defend himself, he was satisfied by the conclusion drawn by the enquiry officer and thus decided to impose the penalty of removal from service. 14. 14. The aforesaid order do not indicate that the reply of the petitioner furnished in response to the show-cause notice was considered by the disciplinary authority. There is neither any reference to it nor any of the objections raised by the petitioner therein have been considered, leave aside recording of reasons and that disagreeing with the contentions raised by the petitioner in his representation. It may be pertinent to mention here that the petitioner was furnished with a show-cause notice dated 10.4.2004, in response to which he had submitted his reply on 24.5.2004. These documents are part of the record, meaning thereby that a reply so furnished by the petitioner was not considered by the disciplinary authority. 15. It is well-settled that reasons are the link between the material facts and the conclusion. In the absence of the reasons in the order the delinquent employee would not be in a position to find out the precise nature as to why punishment has been imposed upon him. It would also affect his right in appeal as he will not have proper opportunity to assail the findings specifically. Therefore, reasons are must for any valid order unless there is a rule to the contrary. 16. It is equally settled that non consideration of material evidence or the reply in the case of a departmental enquiry results in a perversity vitiating the order. 17. This apart, there is no dispute to the effect that the petitioner had remained absent from duty from 23.1.2004 to 10.2.2004 and for this absence a separate departmental enquiry was instituted and he was charge-sheeted on 7.2.2004. This enquiry ended in favour of the petitioner and he was exonerated. He was found to be ill during the aforesaid period. The aforesaid period is the same period during which the petitioner failed to appear before the enquiry officer in the present case. The petitioner had not attended the enquiry from 16.1.2004 to 23.2.2004. Thus, there was no justification on part of the enquiry officer to have proceeded ex parte and against him when the petitioner was ill and due information regarding it including an application for adjournment was made by his representative alongwith proof of illness. 18. The petitioner had not attended the enquiry from 16.1.2004 to 23.2.2004. Thus, there was no justification on part of the enquiry officer to have proceeded ex parte and against him when the petitioner was ill and due information regarding it including an application for adjournment was made by his representative alongwith proof of illness. 18. In view of the aforesaid facts and circumstances, we are of the view that the order of punishment passed against the petitioner cannot be sustained in law as it is perverse, unreasoned and is in violation of the principles of natural justice. 19. The tribunal instead of dealing with the merits of the case had non suited the petitioner on the ground that he is estopped under law from challenging the impugned order of punishment as he had joined as a class IV employee pursuant to the final order of punishment which amounts to accepting the same. 20. The final order of punishment ie., revisional order was passed on 6.10.2004. The petitioner had immediately challenged the same before the tribunal in the year 2004 itself. It has not come on record in the pleadings of the parties that the petitioner had joined on the reverted post pursuant to the above order before filing the original application before the tribunal. 21. A bare reading of the counter-affidavit of the respondents filed before the tribunal reveals that they no where took the plea that the petitioner is estopped from challenging the punishment order as he had accepted the same by joining on the reverted post. 22. In the absence of such pleadings it was not proper for the tribunal to have gone into the above aspect of the matter of its own. 23. The decisions of the Supreme Court in the State of Punjab and other v. Krishan Niwas, (1007) 9 SCC 31 and Sant Kumar Dwivedi v. Dhar Jila Sahakari BhoomiVikas Bank Maryadit and others, (2001) 9 SCC 402 , do not affect the right of the petitioner in taking recourse to the judicial remedy available to him in law. 24. The facts of the case in State of Punjab and others were quite different as there the removal of the employee was as a result of conviction under Section 302 IPC and the punishment awarded was reduced in appeal which was accepted by the employee. 24. The facts of the case in State of Punjab and others were quite different as there the removal of the employee was as a result of conviction under Section 302 IPC and the punishment awarded was reduced in appeal which was accepted by the employee. In such circumstances, when he filed the suit for declaration that his removal from service is illegal and that he is entitle to back wages that the Court held that he is estopped from seeking such a relief. 25. The petitioner has been conferred with a statuary right under the Central Administrative Tribunal Act, 1985 to challenge the order of punishment passed against him. This statutory right if availed within time and the forcorners of law cannot be denied to the petitioner as any such action would be contrary to law. It is an acknowledged principle of law that there cannot be any estopple against the Statute. Therefore, if a person has statutory right to challenge an order, he cannot be deprived of it on the ground of estopple. 26. In view of the aforesaid facts and circumstances, the order of the tribunal dated 4th November 2011 is hereby quashed so also the order of punishment dated 7.5.2004 as modified vide revisional order dated 6.10.2004. 27. The writ petition is allowed accordingly with no orders as to costs.