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2018 DIGILAW 60 (ORI)

Managobinda Samantaray v. Union of India

2018-01-11

D.DASH, INDRAJIT MAHANTY

body2018
JUDGMENT : D. DASH, J. Both the intra court appeals under item No. (A) and (B) arising from the judgment dated 07.11.2014 passed by the Hon’ble Single Judge of this Court in W.P.(C) No.5512 of 2102, having been heard together, are disposed of by this common order. For the sake of convenience and in order to avoid confusion and bring in clarity, the parties hereinafter have been referred to as they have been described in the appeal under item no.(A). 2. The facts necessary for the purpose of these appeals are stated hereunder :- (a) The appellant of the appeal under item no. (A) who is the petitioner in W.P.(C) No. 5512 of 2012 being a constable in the Central Industrial Security Force ( for short, CISF) faced a disciplinary proceeding in course of his posting in the unit of National Thermal Power Corporation at Kaniha in the district of Angul, Odisha. The Enquiring Officer having found the charges to have been established, the Disciplinary Authority, Commandant, CISF Unit NALCO, Angul imposed penalty provided under the head of major punishments as of reduction of pay by two stages, i.e., from Rs.3425/- to Rs.3275/ in the time scale of pay for a period of three years with immediate effect and that the petitioner will not earn increments of pay during the period of reduction and on expiry of this period, the reduction will have the effect of postponing his future increments of pay. It had also been directed that the period of suspension commencing from 04.01.2000 till the receipt of the order be treated as non-duty for all purposes and the petitioner will not be entitled to any more pay and allowances except subsistence allowances. Being aggrieved by the aforesaid order passed by the Disciplinary Authority, this appellant filed an appeal before the Appellate Authority. The Appellate Authority while entertaining the appeal simultaneously issued a notice to the appellant showing cause as to why the punishment as has been imposed by the Disciplinary Authority would not be enhanced and the appellant would not be visited with the punishment of dismissal from service on the ground that punishment imposed is disproportionate to the gravity of the charges established against the appellant. The notice to show cause having been received, the appellant questioned the same by filing a revision before the Inspector General, (Eastern Zone) HQrs., C.I.S.F., Unit, New Patliputra Colony, Patna, Bihar. The notice to show cause having been received, the appellant questioned the same by filing a revision before the Inspector General, (Eastern Zone) HQrs., C.I.S.F., Unit, New Patliputra Colony, Patna, Bihar. The same was however not accepted by the Unit Officer on the ground as not maintainable. The appellant then filed an application before the Appellate Authority to grant time to file the show cause. The application however stood rejected and finally on 23.01.2001, the Appellate Authority passed the order of dismissal of service. (b) The appellant being aggrieved by the said order of the Appellate Authority knocked the door of this Court by filing a writ application i.e. O.J.C. No. 556 of 2001. The said writ application came before the Division Bench of this Court and disposed of on 17.10.2001. The relevant part of the order passed therein may at this stage be placed for proper appreciation. It runs as under :- “xx xx xx Keeping the rival submissions in view this Court perused the records of this case as well as of the disciplinary authority and the appellate authority which are produced by Mr. Das, learned Central Govt. Counsel pursuant to the order dated 08.07.2011. As it appears, after receipt of the show cause notice for enhancement the petitioner filed a petition before the appellate authority seeking extension of time to file show cause reply on the ground that he could not obtain papers from his lawyers since they were on strike. But, evidently no order was passed by the appellate authority on the said petition. On perusal of the records of appeal it further appears that on 09.01.2001 an endorsement has been made in the order sheet to the effect that a draft order has been prepared and placed before the appellate authority (opposite party no.3) for kind perusal and approval. The appellate authority on 15.01.2001 has approved the said draft order. From the aforesaid, it can be safely inferred that the order of enhancement of penalty was drafted by the subordinate staff and the appellate authority has only approved the same without applying his mind. In view of the above, this Court quashes the order of the appellate authority and remits the matter back to the appellate authority to hear it afresh. The entire exercise shall be completed within six months. In view of the above, this Court quashes the order of the appellate authority and remits the matter back to the appellate authority to hear it afresh. The entire exercise shall be completed within six months. This Court directs the petitioner to file his show cause reply to Annexure-5 within six weeks from today.” The appellant thereafter filed the show cause and the Appellate Authority after hearing again reiterated the earlier order of punishment by way of dismissal of the appellant from service. (c) The appellant questioned the above order in a subsequent writ application i.e. W.P.(C) No. 5515 of 2012. The Hon’ble Single Judge after hearing has disposed of the said writ application on 07.11.2014. The Hon’ble Single Judge while declining to interfere with the order of punishment of dismissal of service has however directed that the appellant be treated to have been continuing in service from 23.01.2001 till the subsequent order of dismissal of service passed by the Appellate Authority on 18.02.2012 and next taking note of the fact that the appellant has not worked during that period directed that the appellant be paid with 50% of back wages for the period. (d) The appellant has filed the appeal under item no.(A) wherein he questions the judgment of the Hon’ble Single Judge passed in the above writ application. The respondent has also filed the appeal under item no.(B) questioning the direction of the Hon’ble Single Judge for treating the appellant as continuing in service from 23.01.2001 to 18.02.2012 and payment of 50% of the back wages for the said period to him. 3. We have heard Mr. S.B.Jena, the learned counsel for the appellant and Mr. A.P. Bose, the learned Additional Solicitor General for the respondent. We have also gone through the impugned judgment and perused other connected records. 4. Learned counsel for the appellant submitted that the Appellate Authority has passed the order of punishment of dismissal of service without taking into consideration all the materials available on record and simply being swayed away by the fact that the appellant had assaulted the Assistant Sub-Inspector at the relevant time when he had gone to the place where the appellant was there to discharge his duty without considering the surrounding circumstances which have emerged out of evidence and other attending factors. According to him, the Hon’ble Single Judge has failed to take note of such non-application of mind by the Appellate Authority while enhancing the punishment to the maximum. He also submitted that when the Disciplinary Authority has exercised his discretion in imposing one of the major penalties prescribed under Rule 34 of the Central Industrial Security Force Rules, 2001 the Appellate Authority ought not to have interfered with the same just because in his view, the said quantum of punishment is on a lesser side in consideration to the proven charges without assigning any such compelling reason in providing better justification that it is shockingly disproportionate and thus inadequate. Therefore, he urged that the order of the Appellate Authority enhancing the punishment is vulnerable which aspect has been lost sight of the Hon’ble Single Judge. He thus contends that the Hon’ble Single Judge ought not to have interfered with the impugned order of punishment as had imposed by the Disciplinary Authority. Learned Additional Solicitor General in so far as the punishment is concerned submitted that the enhancement of punishment, in the proven charges is adequate and the Appellate Authority being within its rights did commit no error in imposing the same. He therefore contended that the said order has rightly been confirmed. He also contended that the later part of the direction of the Hon’ble Single Judge does not have the sanction of law and the dismissal of service has to take effect from the date of passing of the order of imposition of punishment by the Disciplinary Authority as the order of Disciplinary Authority stood merged with the order of the Appellate Authority and also the order of Disciplinary Authority passed after remand would be deemed to have take the effect from the date of original order had been so quashed. 5. The appellant having been found guilty of the charges was visited with the penalty as stated in the aforesaid para. When he filed appeal questioning the findings of the Disciplinary Authority who was the Enquiring Officer as well as the punishment imposed upon him, the Appellate Authority issued the notice of enhancement of penalty and on receipt of show cause while finally disposing the appeal holding the findings on the charges to have been rightly rendered, has passed the order of penalty by way of dismissal from service, the maximum one. The present writ applications, stand confined to the said enhanced penalty. 6. The settled position of law is that when the Disciplinary Authority has imposed the penalty viewing the establishment of the charges and taking all other factors emanating from evidence into consideration, the enhancement is called for only when the punishment is shockingly disproportionate and if the discretion in selecting the punishment so imposed has been exercised arbitrarily. The enhancement is permissible only when one or the other of the following conditions was satisfied, namely, the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered; or the decision was one which no reasonable person could have taken. These principles were consistently followed to judge the validity of administrative action. It is equally well known that in 1984, Lord Diplock in Council of Civil Service Unions v. Minister for Civil Service, 1985 AC 374 (called CCSU Case) summarized the principles of judicial review of administrative action as based upon one or the other of the following viz. illegality, procedural irregularity and irrationality. He, however, opined that “proportionality” was a “future possibility”. 7. The Disciplinary Authority being the fact finding authority has to consider the evidence with a view to maintain discipline. It is invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The Appellate Authority in seisin of appeal, cannot normally substitute the penalty imposed by the Disciplinary Authority and substitute some other penalty as its own view. If the punishment imposed by the Disciplinary Authority is highly disproportionate and as such shocks the conscience of the Appellate Authority, it would appropriately mould the punishment, in exceptional cases, impose appropriate punishment with cogent reasons in support thereof and that to being so satisfied on not only in view of the establishment of charges being so confirmed but also on overall consideration of evidence. The rule is very clear that such enhancement is not merely by way of substitution of another view. 8. At this juncture, we may profitably quote the relevant rules for proper appreciation in addressing the rival contentions. Rule 36 (22) of C.I.S.F. Rules - Power of Disciplinary Authority in the matter of penalty. The rule is very clear that such enhancement is not merely by way of substitution of another view. 8. At this juncture, we may profitably quote the relevant rules for proper appreciation in addressing the rival contentions. Rule 36 (22) of C.I.S.F. Rules - Power of Disciplinary Authority in the matter of penalty. “xx xx xx (22)(i) If the disciplinary authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the minor penalties specified in rule 34 should be imposed on the enrolled member, it shall notwithstanding anything contained in rule 37 make an order imposing such penalty; (ii) If the disciplinary authority having regard to its findings on all or any of the articles of charge and on the basis of evidence adduced during the course of inquiry, is of the opinion that any of the major penalties specified in rule 34 should be imposed on the enrolled member, it shall make an order imposing such penalties and it shall not be necessary to give the enrolled member any opportunity of making representation on the penalty proposed to be imposed. xx xx xx Rule 52 of C.I.S.F. Rules :- Power of Appellate Authority in the matter of enhancement of penalty. xx xx xx (2). In the case of an appeal against the order imposing any of the penalties specified in rule 34, or enhancing any penalty imposed under the said rules, the appellate authority shall consider – (a) Whether the procedure laid down in these rules has been complied with and if not, whether such noncompliance has resulted in the violation of any provisions of the Constitution of India or in the failure of justice; (b) Whether the findings of the disciplinary authority are warranted on the basis of the evidence on the record; and (c) Whether the penalty or the enhanced penalty imposed is excessive, or adequate, or inadequate and pass orders; (i) Confirming, enhancing, reducing or setting aside the penalty ; or (ii) remitting the case to the authority which imposed or enhanced the penalty, or to any other authority with such direction as it may deem fit in the circumstances of the case. (iii) No order imposing enhanced penalty shall be made in any other case unless the appellant has been given a reasonable opportunity as far as may be in accordance with the provisions of rule 37, of making a representation against such enhanced penalty. Provided that – (i) If such enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clauses (i) to (v) of rule 34 and an inquiry under rule 36 has not already been held in the case, the appellate authority shall, subject to the provisions of rule 39, itself hold such an inquiry or direct that such inquiry be held in accordance with rule 36 and thereafter on a consideration of the proceedings of such inquiry make such orders as it may deem fit ; and (ii) If the enhanced penalty which the appellate authority proposes to impose is one of the penalties specified in clause (i) to (v) of rule 34 and an inquiry under rule 36 has already been held in the case, the appellate authority shall make such orders as it may deem fit.” 9. In the case at hand, the Appellate Authority has not recorded any reason as to how and why it found the punishment to be highly disproportionate and as such shocked its conscience. Even there is no discussion on this aspect and the evidence, if so available has not been touched upon which is mandated under the law. 10. It needs no emphasis that when Appellate Authority feels that the punishment is highly disproportionate, it must record reasons for coming to such a conclusion and that has to be keeping in view the nature of the charge proved as well as the evidence collected in course of the enquiry and all such other circumstances concerning the delinquent. Mere expression that the punishment is shockingly disproportionate would not meet the requirement of law. Even in respect of administrative orders Lord Denning, M.R. in Breen v. Amalgamated Engg. Union; (1971) 1 All ER 1148 had observed (All ER p. 1154h):- “The giving of reasons is one of the fundamentals of good administration.” In Alexander Machinery (Dudley) Ltd. v. Crabtree; 1974 ICR 120 (NIRC) it was observed: “Failure to give reasons amounts to denial of justice. Union; (1971) 1 All ER 1148 had observed (All ER p. 1154h):- “The giving of reasons is one of the fundamentals of good administration.” In Alexander Machinery (Dudley) Ltd. v. Crabtree; 1974 ICR 120 (NIRC) it was observed: “Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at.” Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the “inscrutable face of the sphinx”, it can, by its silence; render it virtually impossible for the courts to exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. The “inscrutable face of a sphinx” is ordinarily incongruous with a judicial or quasi-judicial performance. In the present case though the Disciplinary Authority had taken all those required aspects into consideration while imposing the original order of punishment, the Appellate Authority has enhanced the same, simply by purportedly viewing the nature of proven charge. The Appellate Authority’s order of enhancement of sentence to that of the maximum i.e. dismissal of service being tested in the touchstone of all the aforesaid read with the relevant rule, in our considered opinion, does not stand to judicial scrutiny. The Hon’ble Single Judge as it appears has lost sight of all the above important facets and has merely gone to concur with the view of the Appellate Authority. For the above discussion and reason, we are of the view that the order of the Appellate Authority enhancing the penalty imposed by the Disciplinary Authority is therefore not sustainable in the eye of law. 11. In the result, we allow the Writ Appeal No. 469 of 2014 and set aside the order on the score of confirmation of the order of the Appellate Authority in enhancing the penalty and restore the penalty as had been imposed by the Disciplinary Authority. The Writ Appeal No. 143 of 2015 filed by the Union of India and others stands disposed of by the aforesaid direction.