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2018 DIGILAW 486 (RAJ)

Riyaz Mohd. v. Central Administrative Tribunal

2018-02-08

K.S. JHAVERI, VIJAY KUMAR VYAS

body2018
JUDGMENT 1. By way of this petition, the petitioner has assailed the judgment and order of the Central Administrative Tribunal whereby tribunal has upheld the order of removal from service on the ground of unauthorized absence from duty. 2 . The facts of the case are that the applicant was initially appointed as Gangman on 4.4.1981 and thereafter in the year 1995 after passing the prescribed test, he was allowed higher scale of Rs.800-1150 and posted in Traffic Department as pp under Station Superintendent, Shyampura Station Kota. It is not disputed that the applicant was sanctioned leave for the period from 2.9.2000 to 5.9.2000. Thereafter the applicant did not report for duty. Accordingly, a major penalty chargesheet was issued vide memorandum dt. 17.11.2003 whereby charges against the petitioner was that while functioning on the post of PP under Station Superintendent, Shymapura, he remained unauthorisedly absent from duty w.e.f. 6.9.2000 onwards. The charge was proposed to be proved on the basis of list of documents and list of witnesses mentioned in Annex. IV. Copy of the chargesheet was sent by registered AD on the last known address of the petitioner. Since the petitioner did not participate in the enquiry proceedings, the enquiry was held ex-parte. Subsequently, the petitioner was removed from service vide order dt. 6.9.2004. The petitioner filed appeal and the Appellate Authority dismissed the appeal. He further filed revision petition before the Revising/Authority and revision petition was rejected vide order dt. 5.7.2005. 3 . Counsel for the petitioner has relied upon the decision of Supreme Court in Dr. Ishwar Chandra Jayaswal vs. Union of India & ors. reported in 2014(5) SLR 667 (SC) wherein it has been held as under:- 6. The Appellant before us is presently 75 years of age. At the time when the Articles of Charge had been served upon him, he had already given the best part of his life to the service of the Respondent-Indian Railways. It has been contended before us that the three charges that have been sustained against the Appellant reflected only the tip of the iceberg; however, there is no material on record to substantiate this argument of Respondents. In the present case, the Appellant has served the Respondents for a period of twenty three years and removal from service for the two charges levelled against him shocks our judicial conscience. In the present case, the Appellant has served the Respondents for a period of twenty three years and removal from service for the two charges levelled against him shocks our judicial conscience. Part III of The Railway Servants (Discipline and Appeal) Rules, 1968 contains the penalties that can be imposed against a Railway servant, both Minor Penalties as well as Major Penalties. We have already noted that it has not been established that the Appellant had, as a matter of habit or on a wide scale, made illegal demands from Railway servants desirous of obtaining a Fit Certificate. However, since two of the three charges have been proved, we are of the considered opinion that the imposition of compulsory retirement i.e. Penalty 6(vii) would have better and more appropriately met the ends of justice. While this would have instilled sufficient degree of fear in the mind of the employees, it would also not have set at naught several years of service which the Appellant had already given to the Respondent-Indian Railways. We think that deprivation of retiral benefits in addition to loss of service is entirely incommensurate with the charge of the Appellant having taken very small sums of money for the issuance of Fit Certificate to other Railway employees. 7. It is in these premises that the Appeals are accepted and the impugned Order dated 11.10.2010 is set aside. The Appellant shall be deemed to have compulsorily retired under Part-III Penalty 6(vii) of the aforementioned Railway Rules with effect from 22.1.1991. If he is entitled to retiral or other benefits on the said date, the Respondents shall make necessary payment within three months from today. This decision is restricted to the facts of the present case. 4 . Counsel for the respondent contended that the petitioner has committed serious mis-conduct and after the order passed by disciplinary authority, the High Court should not substitute the penalty in view of the decision of Supreme Court in State Bank of India vs. Samarendra Kishore Endow reported in 1994 (2) SCT 250 wherein it has been held as under:- "10. On the question of punishment, learned Counsel for the respondent submitted that the punishment awarded is excessive and that lesser punishment would meet the ends of justice. It may be noticed that the imposition of appropriate punishment is within the discretion and judgment of the disciplinary authority. On the question of punishment, learned Counsel for the respondent submitted that the punishment awarded is excessive and that lesser punishment would meet the ends of justice. It may be noticed that the imposition of appropriate punishment is within the discretion and judgment of the disciplinary authority. It may be open to the appellate authority to interfere with it but not to the High Court -- or to the Administrative Tribunal for the reason that the jurisdiction of the Tribunal is similar to the powers of the High Court under Article 226. The power under Article 226 is one of judicial review. It "is not an appeal from a decision, but a review of the manner in which the decision was made." Per Lord Brightman in Chief Constable of the North Wales Police v. Evans 1982(3) All E.R. 141 and A.B. Gandhi v. M/s. Gopinath & Sons 1992 Suppl. (2) S.C.R. 312. In other words the power of judicial review is meant "to ensure that the individual receives fair treatment and not to ensure that the authority, after according fair treatment, reaches on a matter which it is authorised by law to decide for itself a conclusion which is correct in the eyes of the Court". (Per Lord Marylebone in Chief Constable v. Evans). In fact is service matters, it was held by this Court as far back as 1963 that: The High Court is not constituted under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant; it is concerned to determine whether the inquiry is held by an authority competent in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which the findings can be based the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding...under Article 226 of the Constitution. ( State of Andhra Pradesh and Ors. v. S. Sree Rama Rao : (1964) 2 LLJ 150 SC ) 11. Now, coming to the power of the Court exercising Judicial Review to interfere on the question of penalty, it was held by a Constitution Bench in State of Orissa and Ors. v. Bidyabhushan Mohapatra (1963) 1 LLJ 239 SC thus: But the Court in a case in which an order of dismissal of a public servant is impugned, is not concerned to decide whether the sentence imposed, provided it is justified by the rules, is appropriate having regard to the gravity of the misdemeanor established. The reasons which induce the punishing authority, it there has been an enquiry consistent with the prescribed rules, are not justiciable: nor is the penalty open to review by the Court. If the High Court is satisfied that if some but not all of the findings of the Tribunal were "unassailable", the order of the Governor on whose powers by the rules no restrictions in determining the appropriate punishment are placed, was final, and the High Court had no jurisdiction to direct the Governor to review the penalty for as we have already observed the order of dismissal passed by a competent authority on a public servant, if the conditions of the constitutional protection have been complied with, is not justiciable. Therefore if the order may be supported on any finding as to substantial misdemeanour for which the punishment can lawfully be imposed, it is not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant. The Court has no jurisdiction if the findings of the enquiry officer or the Tribunal prima facie make out a case of misdemeanour, to direct the authority to reconsider that order because in respect of some of the findings but not all it appears that there had been violation of the rules of natural justice. 12. This principle was reiterated in Railway Board, Delhi and Anr. vs. Niranjan Singh, (1969) 2 LLJ 743 SC 13. The same view was reiterated by this Court in Union of India v. Parma Nanda (1989)2 LLJ 57 . It was an appeal from the judgment and order of an Administrative Tribunal. K. Jagannatha Shetty, J. speaking for the Bench observed in the first instance that the jurisdiction of the Tribunal is similar to the jurisdiction of the High Court in a writ proceeding and then dealt with the power of the Tribunal to interfere with the penalty imposed by the Disciplinary authority. The learned Judge referred to holding in State of Orissa v. Vidya Bhushan Mohapatra (quoted by us hereinabove) and after referring to several other judgments of this Court, concluded thus: We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the inquiry Officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is mala fide, is certainly not a matter for the Tribunal to concern with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter. 14 . It is significant to mention that the learned Judge also referred to the decision of this Court in Bhagat Ram v. State of Himachal Pradesh and Ors. (1983) 2 LLJ 1 SC and held, on a consideration of the facts and principle thereof, that "this decision is therefore no authority for the proposition that the High Court or the Tribunal has jurisdiction to impose any punishment to meet the end of justice". And then added significantly "it may be noted that this Court exercise the equitable jurisdiction under Article 136 (in Bhagat Ram) and the High Court and Tribunal has no such power or jurisdiction". The learned Judge also quoted with approval the observations of Mathew J. in Union of India v. Sardar Bahadur, (1972) 1 LLJ 1 SC to the following effect: Now it is settled by the decision of this Court in State of Orissa v. Bidyabhushan Mohapatra (1963) 1 LLJ 239 SC that if the order of a punishing authority can be supported on any finding as to substantial misdemeanour for which the punishment can be imposed, it is not for the Court to consider whether the charge proved along would have weighed with the authority in imposing the punishment. The Court is not concerned to decide whether the punishment imposed, provided it is justified by the rules, is appropriate having regard to the misdemeanour established. 15. It would perhaps be appropriate to mention at this stage that there are certain observations in Union of India v. Tulsiram Patel (1985) 2 LLJ 206 SC which, at first look appear to say that the Court can interfere where the penalty imposed is "arbitrary or grossly excessive or out of all proportion to the offence committed or not warranted bythe facts and circumstances of the case or the requirements of that particular government service". It must however be remembered that Tulsiram Patel dealt with cases arising under proviso (a) to Article 311(2) of the Constitution. Tulsiram Patel overruled the earlier decision of this Court in Challappan (1976) 1 LLJ 68 SC . While holding that no notice need be given before imposing the penalty in a case dealt with under the said proviso, the Court held that if a disproportionate or harsh punishment is imposed by the disciplinary authority, it can be corrected either by the Appellate Court or by the High Court. These observations are not relevant to cases of penalty imposed after regular Inquiry. Indeed this is how the said observations have been understood in Nanda referred to above vide para 29. The same comment holds with respect to the decision in Shankar Das v. Union of India (1985) 2 LLJ 184 SC which too was a case arising the proviso (a) to Article 311(2). 5 . It is not in dispute that petitioner has put in service for more than 19 years and counsel for the petitioner contended that for the service of 19 years, he is not entitled for pensionary benefits, therefore, penalty of dismissal may be converted into compulsory retirement. 6 . We have heard counsel for the parties. 7 . Taking into consideration that even if everything is to be considered in favour of the respondent, the fact of the matter is that the order of removal is disproportionate to the misconduct. Even if the absention is taken into consideration, we are not inclined to reinstate him in service but we think it proper to make an order of compulsory retirement. Thus, he will be entitled for all the benefits of retirements from 4.4.1981 to 5.9.2000 and the payment of admissible pension and all other benefits will be made within a period of six months from today. If the payment is not made, petitioner will be entitled for the interest @ 8 per cent from the date of application before CAT. 8 . The petition stands disposed of.