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Judgment
Sanjeeva Kumar, Member (A)
By way of this OA filed under Section 19 of the Administrative Tribunals Act 1985, the applicant has challenged the impugned order dated 2.03.2015 vide which under Rule 9 of CCS (Pension) Rules 1972, the disciplinary authority has imposed a penalty of withholding of 10% of monthly pension permanently on the applicant.
The case in brief is that on 11.05.2001, a Technology day function to give away the National Awards was organized by the Ministry of Human Resource Development at Convention Hall, Ashoka Hotel, New Delhi. The Hon’ble Vice President of India graced the occasion and he also launched a car REWA which was kept at a distance of 20/25 yards on the right side of the dais. However, after launching the car, when the Hon’ble Vice President was conducted to Dais, suddenly one person identified as Sandeep Jaidka threw a packet of cake on the face of Dr. N.K. Sharma, MD, NRDC who was sitting in the 2nd row of centre wing. Thereafter, the said Sandeep Jaidka climbed up the stairs from centre and reached the dais. He gave one leaflet to the Hon’ble Vice President of India and another to dignitary on the dais and shouted that deserving persons are being denied the awards. Then he climbed down the dais from stairs and came out of the Convention Hall where he was nabbed by police and handed over to local police for necessary action. The RR team responsible for safety and security of Hon’ble Vice President consisted of six security personnel including the applicant who were deployed under the supervision of a Inspector for carrying out AS check of the venue and to provide Close Protection Team to the VVIP during movement from alighting point to dais and back including other places, if any.
The RR Team was also to ensure that no unauthorized person gains access near the VVIP during the stay at the place of function including movement and dais. They were also required that neither any media men nor any unauthorized person is allowed access on the dais in any circumstances. The RR team staff was present in the close proximity of the VVIP i.e. dais but none of them had reacted to apprehend Sandip Jaidka, who not only pasted the cake on the face of Shri N.K. Sharma but also distributed the leaflets and climbed on the dais from centre of the stage. There were a number of flowerpots kept on the front stairs and as such there was hardly any place for anyone to climb on the dais. As such they miserably failed to prevent an unauthorized person to climb the dais and reach in the close proximity of the VVIP by breaking the security cordon.
For this serious breach, an inquiry was conducted which concluded as follows:
“2. And whereas, Shri M.M. Oberoi, Enquiry Officer DCP (P.M.)/ Security concluded the Departmental Enquiry and submitted the “findings” on 11.02.2004 holding the charges fully substantiated and proved against 11 team members/co-accused of Departmental Enquiry including ASI Shri Sahansar Pal. Penalty order against all the service delinquent officials was issued by Disciplinary Authority in Delhi Police, however, ASI Shri Sahansar Pal had retired on 30.06.2002, hence proceedings against him deemed to have been continued under Rule 9 of the CCS (Pension) Rules, 1972.”
Subsequently, after following the due procedure, the case was referred to the UPSC for their advice. The UPSC, after considering the case in detail, advised for withholding of 10% of monthly pension permanently to Shri Sahansar Pal, the applicant and to release his gratuity, if not required otherwise. A copy of advice of UPSC was given to the applicant affording him final opportunity and his representation was duly considered. After considering the evidence on record and facts and circumstances of the case, the said penalty was imposed upon him.
The applicant has contended that the respondents have not acted in a just, fair and reasonable manner as allegations and charges were not formed against the applicant specifically by the Inquiry Officer in the departmental proceedings and the evidence of different witnesses are contradictory to each other. He has further contended that the alleged negligence on the part of the applicant was neither attributed nor proved against him in view of the fact that the place at which he was deployed to perform duty was distinct and separate. He has also submitted that the final order passed has failed to consider the act and conduct of the security personals other than the RR team and the disciplinary authority, in a mechanical manner, has relied upon the findings of the Inquiry Officer without going through the entire evidence of witnesses on record and without considering and keeping in mind the actual facts and circumstances at the place of incident. In the light of the above, he has sought the following reliefs:
a) Pass an order thereby set aside the final punishment order dated 02/03/2015, in the interest of justice;
(b) pass any other and further order which this Hon’ble Tribunal deems fit and proper in the facts and circumstances of the case.”
The respondents, in their counter reply, have narrated the incident in detail and submitted that the staff deployed at the access point acted in a most negligent manner by allowing the cake, knowing fully well that eatables were not allowed in contravention of laid down security norms and the RR staff miserably failed to prevent an unauthorized person to climb the dais, and reach in the close proximity of the VVIP by breaking the security cordon, which was a grave security lapse on their part. This act amounted to gross negligence, carelessness and dereliction in the discharge of their official duties and hence the penalty has been imposed following due process.
We have heard the learned counsels for the parties, perused the record and also had the opportunity to go through the judgment of the Hon’ble Apex Court in B.C. Chaturvedi Vs. Union of India and ors., AIR 1996 SC 484, which the learned counsel for the respondent has furnished.
It is not in dispute that the applicant was a member of the RR Team consisting of six security personnel who were responsible for safety and security of the VVIP. It is also a fact that there was serious breach of security which the said RR Team of which the applicant was a member, failed to prevent. It is also evident that a proper departmental inquiry was conducted following the due process and all subsequent procedures like consultation with UPSC, sharing a copy of advice of the UPSC for giving him adequate opportunity to represent against final advice of the UPSC, were followed. Once the applicant furnished his representation, it was given due consideration and the plea taken by him in the representation that departmental inquiry was not conducted as per rules and UPSC is not competent to advise the quantum of punishment were not found convincing.
In B.C. Chaturvedi (supra), which has been placed on record by the respondents, the Hon’ble Supreme Court observed as follows:
“The disciplinary authority is the sole judge of facts. Where appeal is presented. The appellate authority has co- extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 781], this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.
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The next question is whether the Tribunal was justified in interfering with the punishment imposed by the disciplinary authority. A Constitution Bench of this Court in State of Orissa Ors. v. Bidyabhushan Mohapatra [AIR 1963 SC 779] held that having regard to the gravity of the established misconduct, the punishing authority had the power and jurisdiction to impose punishment. The penalty was not open to review by the High Court under Article 226. If the High Court reached a finding that there was some evidence to reach the conclusion, it became unassessable. The order of the Governor who had jurisdiction and unrestricted power to determine the appropriate punishment was final. The High Court had no jurisdiction to direct the Governor to review the penalty. It was further held that if the order was supported on any finding as to substantial misconduct for which punishment "can lawfully be imposed", it was not for the Court to consider whether that ground alone would have weighed with the authority in dismissing the public servant…..
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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. It 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.”
Further, recently in the case of Union of India and Others Vs. P.Gunasekaran (2015 (2) SCC 610), the Hon’ble Supreme Court has observed as under:-
“Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
a. the enquiry is held by a competent authority;
b. the enquiry is held according to the procedure prescribed in that behalf;
c. there is violation of the principles of natural justice in conducting the proceedings;
d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e the authorities have allowed themselves to be influence by irrelevant or extraneous consideration;
f the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g the disciplinary authority had erroneously failed to admit the admissible and material evidence;
h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
i. the finding of fact is based on no evidence.”
Seen in the light of the above touchstone laid down by the Hon’ble Apex Court, there is nothing in the OA to suggest that there has been any contravention of these principles.
In view of the facts of the case narrated and in view of the law laid down by the Hon’ble Apex Court referred to above and also in view of the fact that there is no violation of any procedural rules or principles of natural justice, the OA requires to be dismissed.
Accordingly, the OA is dismissed. No order as to costs.