Raghubansh Prasad Pathak vs Union Of India Ministry Of Commnication New Delhi

Heard Shri Sharad Pathak, learned Senior Advocate assisted by Ms. Priya Singh, learned counsel for the petitioner and Ms. Nidhi Singh, learned counsel for the respondents.

By means of the present writ petition, the petitioner has prayed for the following reliefs:

Factual matrix of the case is that the petitioner was appointed on the post of Technical Assistant (Category-D) in 1982. He was promoted to Category E,F and G on the post of Senior Technical Assistant. He availed Leave Travel Concession to the tune of Rs.12,775/- from Raebareli to Kanyakumari in Class-I category from 1.10.1992 to 11.10.1992.

On 7.3.1995, a show cause notice was issued by the respondent no.4 after a lapse of almost 3 years. On 10.3.1995, the petitioner submitted reply to the same, wherein he had requested to supply a copy of the enquiry report. During pendency of disciplinary action, a departmental promotion committee was held for considering the promotion to Category-H. A charge sheet was served upon the petitioner under the provision of Section 14(3), 14 (46) and 14 (54) of Industrial Establishment (Standing Orders) Act, 1946 on 4.7.1997. At the same time, a domestic enquiry was ordered by appointing one Mrs. S.N. Singh as enquiry officer on 19.8.1997.

Without giving any opportunity of hearing to the petitioner, the domestic enquiry officer submitted a report on 25.4.1998. A show cause notice dated 25.4.1998 was served upon the petitioner to which the petitioner submitted reply but no heed was paid.

Feeling aggrieved against the punishment order dated 21.5.1999, but the same was rejected. On 27.5.2002 representation was also made to the respondent no.3, which was also rejected. Feeling aggrieved, the petitioner filed Writ Petition No.5321(SS) of 2002 which was disposed of for reconsideration/ review of the punishment order, but to no avail. On 10.3.2010, the impugned order was passed by the respondent no.4, whereby the punishment order was kept intact. Feeling aggrieved, the same has filed the present writ petition.

Learned counsel for the petitioner submitted that the petitioner has been awarded two major punishments and two minor punishments which is not permissible in view of the judgment rendered in the case of Union of India and another v. S.C. Parashar reported in 2006 (3) SCC 167.

Learned counsel for the petitioner next submitted that the enquiry committee did not fix date, time and place for oral hearing and for cross examination of witnesses relied upon, therefore, the impugned order based on the ex parte enquiry report is per se illegal and devoid of merit.

Learned counsel for the petitioner next submitted that the impugned order dated 21.5.1999 has been passed without assigning reasons. An appeal was filed against the said order, which has also been dismissed without recording no reasons whatsoever.

Learned counsel for the petitioner next submitted that the opposite parties have committed manifest error of law by awarding major penalty of reversion from ‘Category G’ to lowest ‘Category F’ on the post of Technical Assistant for disputed LTC amount of Rs.7,610/- only.

Learned counsel for the petitioner lastly submitted that the order has been passed without assigning reasons and reasons are the heartbeat of the conclusion, thus, the impugned orders suffer from apparent illegality and is liable to be set aside.

In support of his submissions, learned counsel for the petitioner placed reliance upon the following judgment.

On the other hand, learned counsel for the respondents submitted that a fair and proper domestic enquiry confirming to the principles of natural justice has been conducted against the petitioner. The petitioner participated in the domestic enquiry; all reasonable opportunities were afforded to the petitioner to defend his case, therefore, the orders impugned passed by the respondents is just and valid order and does not suffer from infirmity or illegality.

Having heard the rival submissions advanced by learned counsel for the parties, I have perused the material on record as well as case-laws cited by learned counsel for the petitioner.

Perusal of the record reveals that after a gap of nearly two-and-a -half years, a show cause notice was issued by the respondent no.4 in regard to LTC claim to the tune of Rs.12,775/- to which the petitioner submitted reply requesting to supply of the enquiry report/ documents relied upon. After nearly five years after the journey, charge-sheet was issued to the petitioner on 4.7.1997. In between, DPC met on 1.4.1997 and the petitioner’s case for promotion to Category 'H' was considered ans was kept in a sealed cover only on account of the pending disciplinary proceeding.

Domestic enquiry was ordered on 19.8.1997 and enquiry officer submitted his report holding the charges were proved. Report along with show cause notice was served on the petitioner proposing punishment of reversion in rank, to which the petitioner submitted reply. Vide order dated 21.5.1999, composite punishment order mixing major and minor penalty was awarded to the petitioner.

The petitioner preferred a departmental appeal against the order dated 21.5.1999, which was rejected. Thereafter, the petitioner made representation to respondent no.2 which was also rejected.

I have examined the material on record in the light of the judgments relied upon by learned counsel for the petitioner.

On examination, it is found that the order dated 21.5.1999 simultaneously imposes major and minor punishments in a single composite order viz. (i) reversion in rank from Category 'G' to Category 'F' which is a major punishment (ii)recovery of the amount with interest and (iii) adverse fixation of seniority, placing the petitioner at the bottom of the Category 'F' list- both are punitive in nature.

It is settled law that a disciplinary authority cannot, by the same order, impose a major penalty together with penalties of the nature that fall in the minor category. The aforesaid law was repeatedly laid down by this Court as well as by Hon’ble Supreme Court in various judgment, one of which is Union of India v. S.C. Prashar reported in (2006) 3 SCC 167, in which the Hon’ble Supreme Court held that a reduction of pay with cumulative effect constitutes a major penalty, whereas loss of seniority and recovery of an amount fall within the purview of minor penalities and that a Disciplinary Authority acts illegally and without jurisdiction in imposing both the minor and major penalties by the same order. In this view of the matter, the orders impugned imposing major penalty together with penalties of the nature fall in the minor category are per se illegal and is liable to be quashed.

It is also found that the original punishment order dated 21.5.1999 does not record any reasons whatsoever, nor does it make any discussion even on the enquiry report, reply of the petitioner denying the charge which has been deprecated by this Court as well as by Hon’ble Supreme Court in catena of judgments. From perusal of the orders impugned, it is also apparent that only a single line has been used to negate the case of the petitioner that it has not been found it. Therefore, the punishment order, as well as the order passed in appeal as well as reversion, are liable to be set aside.

It is also found that this Court while disposing the Writ Petition No.5321 (SS) of 2002 vide order dated 23.12.2009, specifically observed that placing the petitioner at the bottom, rather than the top of the seniority list on account of condition nos.2 and 3 of the order dated 21.5.1999, appeared to be unreasonable and illogical and directed the competent authority to scrutinize the matter afresh and take a decision in accordance with law.

Perusal of the impugned order dated 10.3.2010 clearly indicates that it reiterates the earlier stand of the Department in a single sentence, without engaging at all with the specific infirmity pointed by this Court and without disclosing any independent reasoning as to why the petitioner’s seniority could not be fixed at the top of the list. An order passed in compliance of a specific judicial direction, without dealing with the very issue flagged by the Court, amounts to no compliance in the eyes of law and reflects total non-application of mind. The aforesaid ratio has been considered in the case of State of Bihar v. Lakshmi Shankar Prasad reported in (2002) 10 SCC 351 and Ram Pal singh v. Director of Agriculture reported in 2012 SCC OnLine All 244.

It is well settled that reasons are the heartbeat of every conclusion, and an order which affects civil and pecuniary rights of a person without disclosing reasons is not sustainable in law. In this view of the matter, the impugned order dated 10.3.2010 also deserves to be set aside. The aforesaid ration has been considered in the case of Siemens Engineering & Manufacturing Co. of India Ltd. v. Union of India reported in (1976) 2 SCC 981 and Kranti Associates (P) Ltd. v. Masood Ahmed Khan reported in (2010) 9 SCC 496.

On examination, it is also found that no real and effective opportunity of hearing was afforded to the petitioner during the domestic enquiry. The petitioner was never called upon to prove or disprove facts in the manner contemplated in a fair enquiry; no witness of the department was examined nor was any statement recorded in the petitioner’s presence to establish the authenticity of the very documents on which the charge rested, and the enquiry proceeded substantially on the basis of a written explanation alone. In this view of the matter, impugned orders passed by the respondents are violative of principles of natural justice.

It is also relevant to point out that the petitioner was never supplied a copy of the enquiry report at the pre-decisional stage, nor was he permitted inspection of the departmental record, despite specific requests made vide reply dated 9/10.3.1995. Denial of the enquiry report and of an opportunity to meaningfully test the material relied upon by the department is a well-recognised facet of violation of natural justice, going to the root of the punishment order dated 21.5.1999. The ratio has been decided in the case of State of U.P. v. Saroj Kumar Sinha reported in (2010)2 SCC 772 and Suresh Bahadur Singh Kaushik v. State of U.P. (Writ-A No.7914 of 2009).

Out of LTC bill of Rs.12,775 only Rs.7,610/- was ever alleged by the department to be tainted while the remaining amount of Rs.6,165/-has never been in dispute. In these circumstances, recovery of the entire amount of Rs.12,775/- together with 10% interest is factually unfounded and legally unsustainable to the extent it exceeds the amount actually alleged to be in dispute. Even otherwise, the cumulative effect of punishment imposed upon the petitioner shocks the conscience of the Court. The entire career of the petitioner is ruined because of the wrong orders passed by the respondents.

The petitioner had, by the time of the impugned action, rendered long and otherwise unblemished service, having been promoted from Category 'D' to Category 'G' between 1982 and 1992 and his case for promotion to Category 'H' had already been cleared by the DPC in 1997. Visiting such an employee with reversion in rank, recovery of the entire claimed amount with interest, and consignment to the bottom of the seniority list; all arising out of single, decades-old LTC claim of which a substantial part was ever even in dispute. Therefore, the orders impugned are per se illegal and has been passed without application of mind.

It is not in dispute that the case of the petitioner’s promotion to Category 'H' was dully considered by the DPC on 01.04.1997 and was kept in a sealed cover only on account of the pendency of the disciplinary proceedings, and not any adverse assessment on merit. The underlying disciplinary action being unsustainable for the reasons set out above, the sealed cover is liable to be opened in the petitioner’s favour and he is entitled to promotion to Category 'H' with effect from 01.04.1997, together with all consequential service and pecuniary benefits.

The proposition of law that a government employee facing a departmental enquiry is entitled to all the relevant statements, documents and other materials to enable him to have a reasonable opportunity to defend himself in the departmental enquiry against the charges is too well established to need any further reiteration. In the present case, the petitioner has not given opportunity of hearing or to cross examine the witnesses. In the circumstances, the impugned orders deserve to be quashed on this ground alone.

The penalty imposed upon the petitioner is an amalgam of minor penalty and major penalty. The petitioner has been inflicted with three penalties viz. (i) reverted from Category- 'G' to Category 'F' which is major punishment; (ii) saddled with recovery of Rs.12,775/- and (iii) placed at the bottom of the seniority list of Category 'F'. Both the punishments i.e. (ii) and (iii) are punitive in nature. The disciplinary authority, therefore, in the opinion of this Court, acted illegally and without jurisdiction in imposing both minor and major penalties by the same order. Such a course of action could not have been taken in law.

Considering in totalities of facts and circumstances of the case, this Court is of the considered opinion that the inquiry against the petitioner was conducted in gross violation of principle of nature justice, inasmsuch as no reason was recorded in the impugned orders as this Court in earlier writ petition observed while considering the case of the petitioner that the petitioner may be provided opportunity of hearing to defend his case and lastly, the order of the punishment itself was flawed inasmuch as the same was an amalgamation of minor and major penalties.

Accordingly, this writ petition succeeds and is hereby allowed. Impugned orders dated 10.3.2010, 21.5.1999, 4.9.1999 and 27.5.2002 which are contained as Annexure Nos.2,3,4 and 5 respectively to this writ petition are quashed.

However, the respondents are directed to refund a sum of Rs.22,098/- and are also directed to provide the benefit after promoting the petitioner on the post of Technical Assistant (Category-'H') with effect from 1.4.1997 including other pecuinary benefits till the date of superannuation along with 10% simple interest till the date of actual payment.