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Judgment
(Pronounced by Hon'ble Mr. M. Swaminathan, Judicial Member)
Aggrieved by the penalty imposed by the 2nd respondent vide his order, dated 21.10.2016 in reducing the pay of the applicant to the lower post of Senior Auditor for a period of three years and which has been upheld by the 1st respondent in his order dated 12.03.2018, the applicant has filed the OA to quash and set aside the orders and for the consequential benefits.
Brief facts of the case as submitted by the applicant are as follows: The Applicant was a member of the Audit Team from the office of the 2nd Respondent and conducted an audit of the accounts of the Joint Director of Health Services (JDHS), Krishnagiri, from 01.09.2014 to 12.09.2014. Upon completion of the audit, the 2nd Respondent alleged that the Applicant had committed certain lapses in the discharge of his duties, including accepting hospitality from the auditee institution and visiting field offices under the control of the JDHS without authorization from the Headquarters. Accordingly, three Articles of Charge were framed against the Applicant. A charge sheet was issued to the Applicant by the 2nd Respondent, being the Disciplinary Authority, on 04.03.2015 under Rule 14 of the CCS (CCA) Rules, 1965, following a preliminary inquiry. Upon completion of the disciplinary inquiry, the 2nd Respondent, relying upon the report of the Inquiry Authority, held the Applicant guilty of all the charges. Consequently, a major penalty was imposed upon the Applicant, whereby his post of Assistant Audit Officer was reduced to the lower post of Senior Auditor for a period of three years, with postponement of his future increments for the said period. It was further ordered that the period of reduction in rank would have the effect of postponing his future increments for a period of three years and that, upon restoration to the post of Assistant Audit Officer, the Applicant would regain his original seniority in the higher post. Aggrieved by the said order, the Applicant preferred an appeal before the 1st Respondent, being the Appellate Authority. However, the 1st Respondent rejected the appeal and upheld the order of punishment. Hence, the Applicant is constrained to file the present Original Application seeking appropriate relief against the impugned orders.
When the matter was taken up for final hearing, the learned counsel appearing for the Applicant submitted that the punishment had been imposed by the 1st Respondent without adhering to the principles of natural justice and without affording the Applicant a reasonable opportunity to defend himself. He further submitted that the Applicant had been charged with violation of Rule 3(1)(iv) of the CCS (Conduct) Rules, 1964. According to him, the alleged incidents pertained to the period from 01.09.2014 to 12.09.2014, whereas the provision relied upon by the Respondents came into force only in December 2014. Therefore, it was contended that the said provision had been invoked retrospectively with a predetermined and biased intention to punish the Applicant, which was impermissible in law.
The learned counsel further submitted that the Respondents had resorted to an identification parade, although there was no provision under the CCS (CCA) Rules, 1965 authorising such a procedure, with a view to securing a finding against the Applicant. However, the officials summoned from the auditee office were unable to identify the Applicant correctly and conclusively. He further pointed out that the Applicant's request for change of the Inquiry Officer had been rejected, despite the Applicant having raised a specific apprehension that the Inquiry Officer was conducting the proceedings in a biased manner. It was, therefore, submitted that the disciplinary proceedings were vitiated by violation of the principles of natural justice and procedural irregularities. The learned counsel accordingly prayed that the impugned orders be set aside and the reliefs sought in the Original Application be granted.
Per contra, the learned counsel appearing for the Respondents relied upon the reply statement and submitted that the contentions raised by the Applicant were devoid of merit. He submitted that the identification parade was conducted for the purpose of ascertaining the truth regarding the charges and that there was no provision under the relevant rules prohibiting such a procedure. He further submitted that the Inquiry Authority had conducted the identification process in a just, fair and impartial manner.
With regard to the Applicant's contention that the CCS (CCA) Rules, 1965 do not contain specific provisions relating to the examination and cross-examination of witnesses or the maintenance and issuance of Daily Order Sheets (DOS), and that consequently the provisions of the law of evidence would apply, the learned counsel submitted that the said contention was misconceived. He pointed out that Government of India Decisions Nos. 33 to 37 and DG, P&T Orders Nos. 14 to 18 below Rule 14 of the CCS (CCA) Rules, 1965 contain detailed guidelines governing these aspects of disciplinary proceedings. Therefore, according to him, the allegation that the identification process had been conducted with a predetermined intention to secure the Applicant's punishment was baseless and untenable.
The learned counsel further submitted that the provisions of Rule 14 of the CCS (CCA) Rules, 1965, as well as the principles of natural justice, had been duly complied with throughout the disciplinary proceedings. The Applicant had been afforded all reasonable opportunities to defend himself against the charges. He further submitted that, having regard to the gravity of the charges which had been found proved, the penalty imposed upon the Applicant could not be said to be disproportionate. He contended that each disciplinary case had to be considered on the basis of its own facts and circumstances and that the Applicant's attempt to compare his case with that of the SAO was without any legal or factual basis.
In response to the Applicant's contention that the relevant provision had been brought into force only in December 2014 and, therefore, could not have been invoked in respect of an alleged incident which occurred between 01.09.2014 and 12.09.2014, the learned counsel submitted that, although sub-rule 3(1)(vi) was inserted in the CCS (Conduct) Rules, 1964 in December 2014, the other provisions of the CCS (Conduct) Rules, 1964 invoked in the charge memorandum were sufficient to cover the charges framed against the Applicant. He further submitted that sub-rule 3(1)(vi) had been invoked only in respect of Article II of the charge, which was, in any event, not held proved by the Inquiry Authority. Hence, according to the Respondents, the Applicant's contention regarding retrospective application of the said provision did not survive.
He further submitted that in the impugned order the AG and the DA had recorded para-wise detailed reasoned findings on all the points raised by the applicant in his representation against the inquiry report. The AG and DA had also weighed the entire evidence on record and recorded reasoned conclusions. Therefore, the averment made by the Applicant is unfounded. He further submitted that the Appellate Authority only after examining the points mentioned in the Appeal with reference to all the records and circumstances of the case came to a conclusion through a speaking order. It is evident from the impugned order that the Appellate Authority had recorded para-wise detailed reasoned findings on all the points raised by the applicant in his Appeal. He further submitted that principles of natural justice have been properly followed in this case by conducting an inquiry as per provisions of CCS (CCA) Rules, 1965. Therefore, the averment made by the Applicant is unfounded. Hence, he prayed for the dismissal of the OA.
We have considered the rival submissions made by the learned counsel on either side at length, perused the pleadings, and materials placed on record.
It is evident from the records that acts of Shri C. Vijaya Bhaskar, AAO, the applicant of visiting non-selected units and demanding and accepting money from the auditee department that his integrity was doubtful and he had violated Rule 3 (1) (i) of the CCS (Conduct) Rules 1964. By the above act, he had also violated Rule 3 (1) (vi) of the CCS (Conduct) Rules, 1964 which prescribes that every Government Servant at all times shall maintain high ethical standards and honesty. He had acted in a manner unbecoming of a Government Servant, thus violating Rule 3 (1) (iii) of the CCS (Conduct) Rules, 1964. Hence the applicant was issued a Memorandum on 27.01.2015 seeking explanation for his above-mentioned acts. Since the reply furnished by the applicant in letter dated 02.02.2015 was not satisfactory, a Charge Memo dated 04.03.2015 was issued (Page 9 & 10 of OA). In reply to Charge Memo, the Applicant denied the charges. Therefore, Inquiry Authority (IA) and Presenting Officer (PO) were appointed and the departmental inquiry was held as per provisions of the CCS (CCA) Rules, 1965 wherein the Applicant was given full opportunity to prove his innocence by submitting his evidence. After completion of the Inquiry, the IA submitted the Inquiry Report dated 26.08.2016 and the IA had arrived at the conclusion that all the charges in Article I to III of the Memorandum of Charges except the part of the charge in Article II regarding acceptance of money for boarding, lodging and other expenses stood substantiated.
A copy of the Inquiry Report was furnished to the Applicant as per the rules. Taking into account the findings of the Inquiry Authority, the facts and circumstances of the case and the representation of Applicant on Inquiry Report, the Disciplinary Authority (DA) passed final order dated 27.10.2016 imposing the penalty that the post of Shri C. Vijaya Bhaskar, AAO the applicant be reduced to the lower post of Senior Auditor for a period of three years. Further, his pay in the reduced lower post was fixed at ₹50,500 for a period of three years with further stipulation that he would not draw any increment during the period of reduction and that the period of reduction would have the effect of postponing his future increments of pay for a period of three years. It was also directed that he would regain his original seniority in the higher post of Assistant Audit Officer when he is restored to it. Aggrieved by the order of DA dated 27.10.2016, the Applicant filed an Appeal before the Deputy Comptroller and Auditor General (the 1st Respondent) on 09.02.2017, the Appellate Authority. The Appellate Authority in order dated 12.03.2018 dismissed the Appeal on the ground that it lacked merit and upheld the impugned order passed by the DA.
The scope of judicial review and the powers of Courts/Tribunals in disciplinary matters, including the extent of interference with the findings of disciplinary authorities and the quantum of punishment imposed, were elaborately considered by a Three-Judge Bench of the Hon'ble Supreme Court in State of Andhra Pradesh v. S. Chitra Venkata Rao, (1975) 2 SCC 557. The relevant observations contained in paragraphs 21 to 24 of the judgment read as follows:
"21.The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao. First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, 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 to review the evidence and to arrive at an independent finding on the evidence. The High Court may 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. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their 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 for a writ under Article 226.
22.Again, this Court in Railway Board, representing the Union of India, New Delhi v. Niranjan Singh said that the High Court does not interfere with the conclusion of the disciplinary authority unless the finding is not supported by any evidence or it can be said that no reasonable person could have reached such a finding exceeded its powers in interfering with the findings of the disciplinary authority on the charge that the respondent was instrumental in compelling the shut-down of an air compressor at about 8.15 a.m. on May 31, 1956. This Court said that the Enquiry Committee felt that the evidence of two persons that the respondent led a group of strikers and compelled them to close down their compressor could not be accepted at its face value. The General Manager did not agree with the Enquiry Committee on that point. The General Manager accepted the evidence. This Court said that it was open to the General Manager to do so and he was not bound by the conclusion reached by the committee. This Court held that the conclusion reached by the disciplinary authority should prevail and the High Court should not have interfered with the conclusion.
23.The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an appellate court. The findings of fact reached by an inferior court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again, if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal. See Syed Yakoob v. K.S. Radhakrishnan.
24.The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do."
The principles have been further discussed by the Hon'ble Apex Court in the case of C. Chaturvedi Vs. Union of India and Others (1995 (6) SCC 749) wherein it was observed as under:
“18.A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.”
The aforesaid settled legal principle makes it abundantly clear that the scope of interference with departmental enquiry proceedings is extremely limited and is confined to the parameters of judicial review. Such interference is warranted only where the delinquent employee is able to establish a jurisdictional error, violation of the principles of natural justice, procedural irregularity causing prejudice, or mala fides on the part of the competent authority. In the present case, the applicant has failed to demonstrate any jurisdictional infirmity or procedural irregularity in the conduct of the enquiry. Equally, no allegation of mala fides has been substantiated against the respondents, nor has any individual officer been specifically impleaded or named against whom such allegations could be attributed. The records further disclose that the applicant was afforded adequate and reasonable opportunity at every stage of the disciplinary proceedings to defend himself. The enquiry was conducted in accordance with the prescribed procedure, and the applicant was given full opportunity to present his case before both the Inquiry Officer and the Disciplinary Authority. As observed by the Appellate Authority, the misconduct established against the applicant was of a serious nature and unbecoming of a responsible public servant. In fact, considering the gravity of the proved charge, a more severe penalty could well have been justified. However, the Disciplinary Authority, taking a lenient view of the matter, imposed only the penalty of reduction of pay by one stage for a period of one year. The said penalty was subsequently examined and affirmed by the Appellate Authority.
In view of the foregoing facts and circumstances, we find no illegality, procedural irregularity or perversity in the orders passed by the Disciplinary Authority and the Appellate Authority. The decisions arrived at by the competent authorities are fully justified on the basis of the material available on record and, therefore, do not warrant any interference by this Tribunal.
In the result, the OA sans merits and is accordingly dismissed. No orders as to costs.