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Judgment
In the instant appeal, appellant has assailed the order of the learned Single Judge dated 13.07.2015 passed in CWJC No. 47 of 2000.
During pendency of LPA 1850 of 2015, appellant Murlidhar Sharma has died, in the result his wife Kanti Devi was brought on record. Thereafter, she also died. In the result son Chandra Shekhar Sharma has been brought on record. In other words, son of the deceased Murlidhar Sharma is pursuing this matter.
Brief facts of this case are that deceased Murlidhar Sharma was stated to have been appointed with the respondent in the month of November 1969. He was placed under suspension on certain serious allegations on 27.03.1995. He was charge-sheeted in a departmental enquiry on 18.04.1995 and suspension was revoked on 29.06.1995. The deceased (Murlidhar Sharma) submitted his explanation to the charge-memo while denying the alleged charge on 09.04.1996. Disciplinary authority was not satisfied with the explanation to the charge- memo and proceeded to appoint inquiring officer and presenting officer to hold disciplinary proceedings in terms of the charge-memo dated 18.04.1995.
The inquiring officer submitted his report on 07.04.1999 while holding that the charges levelled against the deceased were proved. On receipt of inquiring officer’s report by the disciplinary authority, it had issued a show-cause notice on 19.05.1999 along with the inquiring officer’s report. The deceased is stated to have submitted his show cause on 07.07.1999 on the inquiring officer’s report read with the show-cause notice.
Disciplinary authority after taking note of due records proceeded to impose a penalty of dismissal from service on 20.08.1999 and it was communicated to deceased on 27.10.1999. Feeling aggrieved and dissatisfied with the order of dismissal, deceased invoked remedy of appeal before the appellate authority on 07.09.1999 and it was rejected on 30.09.1999 and it was later on communicated by the Joint Secretary on 27.10.1999.
Appellant suffered adverse order before the learned Single Judge in CWJC No. 47 of 2000. Hence the present LPA.
Learned counsel for the appellant submitted that charges are vague and it is a case of no evidence insofar as charge Nos. 3 and 4 are concerned. It is further submitted that appellate authority has not considered each of the contentions stated by the deceased-employee in his appeal. These contentions have not been appreciated by the learned Single Judge, therefore, order of the learned Single Judge and penalty and its affirmation are liable to be set aside.
Per-contra, learned counsel for the respondent resisted the aforesaid contention and submitted that charges levelled against deceased-employee were serious in nature, therefore, it is not a case of no evidence. The inquiring officer after due consideration of evidence on record proceeded to hold that the charges levelled against the deceased-employee were proved. Therefore, there is no infirmity in the order of disciplinary authority. It is further submitted that appellate authority-chairperson has taken a decision after analyzing factual aspects of the matter while affirming the order of the penalty. Similarly, there is no lacuna in the order of the learned Single Judge.
Heard learned counsels for the respective parties.
Undisputed facts are that deceased-Murlidhar Sharma, while working as an Account Assistant on serious allegations stated in the charge-memo, was placed under suspension and later on it was revoked. The disciplinary proceedings concluded in imposition of penalty of dismissal from service and it has been affirmed by the appellate authority on 30.08.1999 and it was communicated on 27.10.1999.
Learned counsel for the appellant submitted that charge Nos. 1 and 2 are vague. It is a case of no evidence in respect of remaining charges.
From perusal of the records, it appears the alleged charge is serious in nature. It is necessary to reproduce articles of charge Nos. 1 to 5 which read as under:-
The Apex Court has time and again held that disciplinary proceedings in the normal course should not be interfered since, courts cannot act as an appellate authority so as to examine merits of the case. Therefore, the learned counsel for the appellant’s contention that it is a case of no evidence, cannot be examined in Writ/LPA. Insofar as non-speaking order of the appellate authority and in not considering each of the contention of the deceased-appellant in his memorandum of appeal dated 07.09.1999 are concerned, we find that appellant has made out a prima-facie case so as to interfere with the appellate authority’s order to the extent that it is not a speaking order. At this stage, it is necessary to reproduce the decision of the appellate authority which reads as under:-
“Chairperson:-
I have studied the concerned papers as also the memo of appeal. I find that this is a hard case which does not admit extenuating circumstance to lean in favour of the appellant. He appears to be a chronic defaulter and violator of rules and regulations and did not improve even after oral and written warning. What is worse, he even indulged in an act of criminal violence by locking of the Electrical Executive Engineer inside his chamber for hours together and threatening him with murder if he dared not to fall in line with him. He even requisitioned musclemen from outside to intimidate and coerce the Electrical Executive Engineer. This is most unbecoming of a government servant. All the charges were proved against him in the departmental proceedings. As such, he does not deserve any sympathy and has been rightly dismissed from the service of the board. There is no merit in his appeal and the same is, therefore, dismissed. Based on the above, let the office prepare a draft of the self-contained order to be served upon him. Draft will issue after approval.
Sd/-
(V.S. Dubey)”
Appellate authority is exercising quasi-judicial function under the certified Standing Orders under the Industrial Employment (Standing Orders) Act, 1946, he is exercising power under order 35. Order 35 reads as under:-
“35. All workman shall have the right to appeal against any order of any authority to the next superior officer.”
This is a quasi-judicial power which is to be exercised by the appellate authority. Therefore, appellate authority’s order in the note-sheet of the concerned file cannot be treated as an order passed by the appellate authority. Moreover, the appellate authority has directed his subordinate to issue order of appellate authority. Order of communication of the appellate authority reads as under:-
“Annexure-13
BIHAR STATE ELECTRICITY BOND PATNA
DEPARTMENT OF GENERAL ADMINISTRATION
File
No. VII/ All-Acctt.-2002/95 2783/ Dated,
the 27.10.1999
To
Shri Murlidhar Sharma,
Accounts Assistant (Dismissed),
Electric Supply Circle, Gaya (East),
At & P.O. Dhanchhuha,
P.S. Sahar,
Dist. Bhojpur.
Sub: Regarding appeal.
With reference to his appeal petition dated 07.09.1999 addressed to the Chairman, Bihar State Electricity Board, Patna it is to intimate him that he was earlier placed under suspension on the charge of misconduct and dereliction of duties vide Board’s Office Order No.1507 dated 27.03.1995 and for this act a departmental proceeding was initiated against him vide Office Order No. 2024 dated 18.04.1995 and Director, Departmental proceeding, Bihar State Electricity Board, Patna was appointed as Enquiring Officer.
The Enquiry Officer submitted his findings vide his Letter No. 274 dated 07.04.1999 with the observations that the charges levelled against the proceedee (Sri Murlidhar Sharma) is proved that he had committed grave misconduct and dereliction of duties.
Accordingly, The enquiry report was duly examined and a 2nd show cause notice for dismissal from Board's service on proved charged was served to him vide Board's Office Order No. 2196 dated 19.05.1999.
Sri Sharma submitted his reply of the 2nd show cause notice on 07.07.1999 which was examined and found unsatisfactory cause the charge no. 5 is extremely serious in which he brought outsider anti-social elements in the office to intimidate the Electric Executive Engineer for getting an irregular order.
Accordingly he was dismissed from the Board's service with immediate effect vide Board’s Office Order No. 3908 dated 20.08.1999.
Thereafter, he submitted an appeal before the Chairman for consideration of his case. The matter was placed before the Chairman for consideration. The Chairman observed that he, as a chronic defaulter and violater of rules and regulations and did not improve even after oral and written warning. He even Indulged in an act of criminal violence by looking up the Electrical Executive Engineer inside his chamber for hours together and threatening him with murder if he dared act to fall in line with him. He even requisitioned musclemen from outside to intimidate and coerce the Electric Executive Engineer. This is most unbecoming of a Govt. servant. All the charges were proved in the departmental proceeding. As such, he does not deserve any sympathy and has been rightly dismissed from the service of the Broad. There is no merit in his appeal and the same is therefore, dismissed.”
Sd/-
(S. Mukherjee)
Joint Secretary”
Reading of the aforesaid communication, it does not reveal that it is a communication, on the other hand, it appears as if the Joint Secretary is passing order on memorandum of appeal.
In the light of these facts and circumstances, the appellant has made out a case so as to interfere with the appellate authority’s order alone.
Apex court in the case of Secretary and Curator, Victoria Memorial Hall vs. Howrah Ganatantrik Nagrik Samity and others held that order must be reasoned, which was reported in (2010) 3 SCC 732 and paragraphs 37, 38 and 40 to 42 which read as under:-
“37. The Constitution Bench of this Court in University of Mysore v. C.D. Govinda Rao [AIR 1965 SC 491] held that (AIR p. 496, para 13) “normally the courts should be slow to interfere with the opinions expressed by the experts”. It would normally be wise and safe for the courts to leave the decision to experts who are more familiar with the problems they face than the courts generally can be. This view has consistently been reiterated by this Court as is evident from the judgments in State of Bihar v. Dr. Asis Kumar Mukherjee [(1975) 3 SCC 602 : 1975 SCC (L&S) 51 : AIR 1975 SC 192] , Dalpat Abasaheb Solunke v. Dr. B.S. Mahajan [(1990) 1 SCC 305 : 1990 SCC (L&S) 80 : (1991) 16 ATC 528 : AIR 1990 SC 434] , Central Areca Nut & Cocoa Mktg. & Processing Coop. Ltd. v. State of Karnataka [(1997) 8 SCC 31] and Dental Council of India v. Subharti K.K.B. Charitable Trust [(2001) 5 SCC 486].
However, if the provision of law is to be read or understood or interpreted, the court has to play an important role. (P.M. Bhargava v. UGC [(2004) 6 SCC 661 : AIR 2004 SC 3478] and Rajbir Singh Dalal (Dr.) v. Chaudhari Devi Lal University [(2008) 9 SCC 284 : (2008) 2 SCC (L&S) 887] .)
It is a settled legal proposition that not only an administrative but also a judicial order must be supported by reasons, recorded in it. Thus, while deciding an issue, the court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the court to record reasons while disposing of the case. The hallmark of an order and exercise of judicial power by a judicial forum is to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of justice-delivery system, to make known that there had been proper and due application of mind to the issue before the court and also as an essential requisite of the principles of natural justice. “The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the court concerned had really applied its mind.” (Vide State of Orissa v. Dhaniram Luhar [(2004) 5 SCC 568 : (2008) 2 SCC (Cri) 49 : AIR 2004 SC 1794] and State of Rajasthan v. Sohan Lal [(2004) 5 SCC 573 : (2008) 2 SCC (Cri) 53].
Reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, it becomes lifeless. Reasons substitute subjectivity by objectivity. Absence of reasons renders the order indefensible/unsustainable particularly when the order is subject to further challenge before a higher forum. (Vide Raj Kishore Jha v. State of Bihar [(2003) 11 SCC 519 : 2004 SCC (Cri) 212 : AIR 2003 SC 4664] , SCC p. 527, para 19; Vishnu Dev Sharma v. State of U.P. [(2008) 3 SCC 172 : (2008) 1 SCC (L&S) 596] , SAIL v. STO [(2008) 9 SCC 407] , State of Uttaranchal v. Sunil Kumar Singh Negi [(2008) 11 SCC 205 : (2008) 2 SCC (L&S) 1093 : AIR 2008 SC 2026] , U.P. SRTC v. Jagdish Prasad Gupta [(2009) 12 SCC 609 : (2010) 1 SCC (L&S) 156 : AIR 2009 SC 2328] , Ram Phal v. State of Haryana [(2009) 3 SCC 258 : (2009) 1 SCC (L&S) 645 : (2009) 2 SCC (Cri) 72] , Mohd. Yusuf v. Faij Mohammad [(2009) 3 SCC 513] and State of H.P. v. Sada Ram [(2009) 4 SCC 422] .)
Thus, it is evident that the recording of reasons is a principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision making. The person who is adversely affected may know, as to why his application has been rejected.
Further, in the case of Kranti Associates (P) Ltd. v. Masood Ahmed Khan, (2010) 9 SCC 496, para 47 reads as under:-
“47. Summarising the above discussion, this Court holds:
(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons in support of its conclusions.
(c) Insistence on recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi-judicial or even administrative power.
(e) Reasons reassure that discretion has been exercised by the decision-maker on relevant grounds and by disregarding extraneous considerations.
(f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review by superior courts.
(h) The ongoing judicial trend in all countries committed to rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision-making justifying the principle that reason is the soul of justice.
(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.
(j) Insistence on reason is a requirement for both judicial accountability and transparency.
(k) If a judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or “rubber-stamp reasons” is not to be equated with a valid decision-making process.
(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor [(1987) 100 Harvard Law Review 731-37] .)
(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain [(1994) 19 EHRR 553] EHRR, at 562 para 29 and Anya v. University of Oxford [2001 EWCA Civ 405 (CA)] , wherein the Court referred to Article 6 of the European Convention of Human Rights which requires, “adequate and intelligent reasons must be given for judicial decisions”.
(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for development of law, requirement of giving reasons for the decision is of the essence and is virtually a part of “due process”.”
It is held that when an authority is exercising quasi-judicial functions and such order or a decision is further subjected to judicial review, in such an event respective contentions were required to be dealt with by the concerned authority like appellate authority in the present case.
Perusal of memorandum of appeal filed by the deceased- employee shows it runs to nine pages, whereas appellate authority’s decision is less than one page. In other words, there is non-consideration of respective contention raised by the deceased-employee in his memorandum of appeal. In the light of these facts and circumstances the appellant has made out a case. Accordingly, order of the learned Single Judge dated 13.07.2015 and appellate authority dated 07.09.1999 are set aside. The matter is remanded to the appellate authority to pass a fresh order after due consideration of each of the contentions stated in the memorandum of appeal dated 07.09.1999 and communicate the decision to the appellant (legal heirs of deceased-employee Shri Murlidhar Sharma) within a period of four months from the date of receipt of this order.
Hence, the present LPA is allowed in part.