AI Structured Summary
Not yet generated for this judgment
Judgment
Indira Banerjee, J.—This writ application has been filed by the petitioner, challenging an Order No. O.A. 210/AN/2010 dated 27th March, 2012, passed by the Central Administrative Tribunal, Calcutta Bench, on circuit at Port Blair, dismissing the application of the petitioner u/s 19 of the Administrative Tribunals Act, 1985 whereby the petitioner had inter alia challenged an order No. 731 dated 5th March, 2007 of the Disciplinary Authority imposing on the petitioner the penalty of reduction in rank from the post of Chief Fire Officer to the post of Inspector of Fire Brigade and also the Appellate Order dated 12th April, 2010 dismissing the appeal of the petitioner from the said order dated 5th March, 2007. The petitioner who had initially joined the Andaman and Nicobar Police Force as Constable on or about 16th June, 1975, was appointed as a directly recruited Sub-inspector of the Andaman and Nicobar Police Fire Service on or about 6th March, 1979. On or about 8th December, 1989 the petitioner was promoted as Chief Fire Officer of the Andaman and Nicobar Islands. The petitioner was awarded the President''s Police Medal for meritorious service in the year 1994 and the President''s Medal for distinguished service in the year 1999.
By an order No. 1565 dated 23rd April, 2004, the Lieutenant Governor Andaman and Nicobar Islands, being the Disciplinary Authority, placed the petitioner under suspension in contemplation of disciplinary proceedings. Thereafter a Memorandum of charge being F No. 11-111/2004-HOME(PF) dated 7th February, 2005 was issued to the petitioner by the Disciplinary Authority. The Articles of charges framed against the petitioner were briefly as follows:--
ARTICLE-I
That Shri K.R.R. Nair, while functioning as Chief Fire Officer, deliberately manipulated the merit-list (List ''L'' i.e. promotion of constables (firemen) to the rank of Head constables, (Leading firemen), approved by the selection committee, thereby favouring candidates in lower merit.
That such act of manipulation of the merit list prepared by the competent selection board in accordance with the guidelines of the standing order No. 5297 date 19.07.1999 issued by the Inspector General of Police constitutes grave misconduct and abuse of his official position. Shri K.R.R. Nair thus failed to maintain absolute integrity, devotion to his duty and acted in a manner unbecoming of govt. servant in contravention of Rule 3(J)(i)(ii) & (iii) of CCS (Conduct) Rules, 1964.
ARTICLE-II
That Shri K.R.R. Nair, while functioning as Chief Fire Officer, deliberately manipulated the merit list (List-"M") i.e. promotion of Head Constables (leading fireman) to the rank of Assistant Sub-Inspectors (Sub-Officers) prepared by the Competent selection board in accordance with the guidelines of the Standing Order No. 5297 dated 29.7.1999 issued by the Inspector General of Police Shri K.R.R. Nair thus failed to maintain absolute, integrity, devotion to his duty and acted in a manner unbecoming of govt. servant in contravention of Rule 3(1)(i)(ii) & (iii) of CCS (Conduct) Rules, 1964.
ARTICLE-III
That Shri K.R.R. Nair, Chief Fire Officer, instigated some of the constable (firemen) to submit false and frivolous joint petitions directly to the Inspector General of Police against the merit list (List-1) of constables (firemen) prepared in accordance with the guidelines of the standing order No. 5297 dated 29.7.1999, by the competent selection board duly constituted by the Inspector General of Police, thereby encouraging indiscipline in the Police Force.
That the aforesaid conduct of Shri K.R.R. Nair, Chief Fire Officer, amounts to grave misconduct, and he acted in a manner unbecoming of an officer of A&N Police Fire Service thereby contravening of Rule 3(1)(i)(ii)(iii) (Conduct) Rules, 1964.
The petitioner submitted his defence to the charge-sheet and appeared before the Enquiry Officer. The Enquiry Officer duly submitted a report exonerating the petitioner of the charges under Articles I and III of the Articles of Charges, but holding that the charge under Article II had been proved.
Article II of the statement of Articles of charges has been set out above for the sake of convenience. The aforesaid charge was that the petitioner, while functioning as Chief Fire Officer, had deliberately manipulated the merit list (List -''M'') for promotion of Head Constables (Leading Firemen) to the rank of Assistant Sub-Inspectors (Sub officers) prepared by the competent selection board, in accordance with the guideline of the standing order No. 5297 dated 29-07-1999, issued by the Inspector General of Police. The petitioner thus failed to maintain absolute integrity, devotion to his duty and acted in a manner unbecoming of a Government servant in contravention of Rules. 3(1)(i)(ii) and (iii) of CCS (Conduct) Rules, 1964.
The statement of imputation of misbehavior in support of the charge contained in Article II is set out herein below:--
ARTICLE-II
That a Selection Committee consisting of Shri Mahabir Singh, Supdt. of Police, as Chairman, Shri A.K. Lall, the then Dy. SP Vice-principal, PTS) and Shri B.B. Choudharym, Dy. Supdt. of Police as members conducted the promotion test for preparing the selection List-''M'' i.e. Head Constables (loading firemen) to the rank of Asstt. Sub Inspectors (Sub officers) on 21st and 22nd December, 2003, Shri Muralindharan, Asstt. Engineer (mech) from APWD, was also co-opted as member for the purpose.
The following 4 candidates were declared qualified as per the proceedings drawn by the selection Committee strictly on merit in accordance with the existing standing Order No. 5297 dt: 29-07-1999:--
(1) HC/1774 Laxman Das.
(2) HC/18 D.N. Mishra.
(3) HC/1735 Iqtdar Baksh.
(4) HC/645 M Rambir.
Thereafter, Shri K.R.R. Nair, CFO, vide his note recorded in N/P-7 of Filo No. 2-14/03-04, sought approval of the IGP for placing the names of Head constables who had qualified in the promotional examination to the rank of Asstt. Sub-Inspector in the order of their seniority (instead of merit). As per the standing order No. 5297 dated 29-07-99, the selection list should be prepared by the selection committee strictly according to merit. Hence, the IGP, had recorded his observation in para-43 on N/S-7 of the aforesaid file that the standing order is clear and that the list is to be prepared as per merit. In spite of orders passed by the IGP a list declaring the following Head Constables as qualified placing their names in List-M was deliberately published in the order of seniority vide Order Book No. 345 dated 13-02-2004 by Shri K.R.R. Nair, CFO:--
(1) HC/645 M. Rambir.
(2) HC/1735 Iqtdar Baksh
(3) HC/18 D.N. Mishra.
(4) HC/1774 Laxman Das.
It was mentioned in aforesaid Order Book that the said Order was issued with the approval of the IGP, whereas, in fact, no such approval was actually accorded by the IGP. The DPC held on 18/02/2004 chaired by Shri Alok Kumar Verma, IGP was misguided by Shri K.R.R. Nair, CFO by submitting before it a bio-data chart in the order of seniority, instead of merit. This resulted in the promotion of non-bonafide candidate (HC/645 M. Rambir (Sl. No. 4 in the merit list) and rejection of bonafide candidate (HC/1774 Laxman Das, Sl No. 1 in the merit list).
The defence of the petitioner to the aforesaid charge was inter alia as follows:--
The new selection committee conducted the selection test on 21st and 22nd December, 2003 the selection proceedings was submitted directly to the IGP and the same was approved by the IGP on 24-12-03 (P/13). Accordingly, merit list was published vide order No. 2660 dated 24-12-03 (exhibit P/9) under intimation to IGP, DIGP, SP(D) and others and a copy in the notice board was also put mentioning therein that the list is as per merit of the candidates in the test. This list (p/13) is not the list ''M''. Thereafter, vide para 41&42, approval was sought from IGP to place the qualified candidates in list M as per seniority. On this vide para 43/N IGP remarked "The SO is clear. The list is to be prepared as per merit. May issue accordingly", and subsequently without marking the file to anybody in para 44/N IGP again made the direction "the 4th will be adjusted in the next vacancy. There is a vacancy in the rank of SI which may be filled up at the earliest." Since two standing orders were existing at the relevant time i.e. SO. 5297 dated 29-07-99 (exhibit P/2) and SO. 1841 dated 2-9-03 (exhibit P/1) and the instruction at para 43/N was not clear, IGP was again requested to approve for placing the merit listed candidates in list ''M'' as per standing order No. 5297 dated 29-07-99 and to fix the date of DPC, which the IGP approved vide para 58/N page 9/N of the relevant file to place the candidates in list ''AT as per standing order 5297 dated 29-07-99 (Exhibit D 2/1). Accordingly, the four (4) merit listed candidates were placed in list ''M'' as per seniority, in their inter se seniority in the feeder rank vide order No. 3245 dated 13.3.04 (exhibit p/8) under intimation to IGP, DIGP, SP(D) and others; and a copy whereof was duly put up in the notice board of Fire Brigade. As such, it is obvious that the charged officer did not do anything in any manner whatsoever with the said merit list which may be termed as against the standing order. The CO only issued the list ''M'' as per IGP''s direction/approval (exhibit D-2/1) and in conformity with provisions of Chapter V of the A&N Police Manual, 1963 (exhibit D-14) and also in accordance with the precedence on record in this matter (exhibit D-1).
The merit listed candidates were placed in list M as per seniority since during the year 1999 when promotion test was held, the candidates were selected strictly as per merit and the merit listed candidates were placed in list M as per seniority. Order No. 5264 dated 4-11-1999 (D 1/3) may be perused. At that time, though the qualifying mark was 40%, the cut off mark was 52% and the highest mark was 62% scored by two candidates namely HC/300. HNS Yadav and HC/41. ML Paul (D1 to D1/2) but these candidates of higher merit in the test were placed in list M as per seniority and therefore in list ''M'' the said HNS Yadav, remained at Sl. No. 3 and the other Shri ML Paul found place at Sl. No. 7, despite being the first in order sequence in the merit list. Because, for the merit listed candidates having been tempered by seniority consistent with Rule 5.1 of the A&N Police Manual, 1963 (exhibit D/14) the first place was obtained in list ''AT by HC/1156 Nelesco Tirkey, who scored just 54%. Whereas, during the selection in December 2003, the cut off mark is 46.5% and the highest mark is 61.5%. The A&N Police Manual 1963 chapter 5, Rule 5.16(b) states that for entry in list M, the candidates shall be required to pass an examination in proficiency in Fire Brigade subjects and SO 5297 dated 29-07-99 also states that 40% is the minimum qualifying mark and eligible candidates will be placed in list M. Therefore, placing the candidates in list Mas per seniority is the mandatory requirement as prescribed by the Police Manual, the said placing was also in consonance with the spirit & tenet of the SO. 5297 dated 29-07-99 which is just an enabler based on Rule 5.16(b) ibid. Further, as per Govt. of India, Dept. of Per. & Trg. Since qualifying mark has been prescribed in this case as 40% mark, it is to be treated as bench mark. In that case, the merit listed panel shall be re-organized and arranged in order of their inter se seniority in the feeder grade. This is as per para 6.3.1. (b) of the Estt. And Admn. Manual, Chapter Seniority and Promotion, at page No. 855 of Edition and the extract thereof is annexed hereto marked ''Y''.
The DPC for promoting Head Constables (leading Fireman) to Assistant Sub Inspectors (Sub-Officers) was held on 18-2-03. Prior to convening the DPC, background note was submitted to IGP and also to SP(D) being the member since he was holding the charge of DIGP. Along with the background note furnished to IGP and SP(D), order No. 2660 dated 24-12-03 (P/9) publishing the merit list and order No. 345 dated 13-2-04 (P/8) placing the merit listed candidates in list M as per seniority were also duly attached. As such, the Chairman and members of DPC were well aware of the facts and there is no question of misguiding them in the DPC.
In the statement of PW-21, member who graced both the lists selection committee and conducted promotion test categorically stated that he is not qualified in Fire Brigade subjects, PW-26 Shri A.K. Verma, IGP, in his statement stated that he gave approval to place the candidates in list Mas per SO. 5297 dated 29-07-99, and the charged officer has placed the candidates in list M as per seniority i.e. in the manner of placing the candidates in list M as per the precedence on record that was done during 1999 by the then IGP who issued SO. 5297 dated 29-07-99. When standing order already exists and procedure has already been laid down by the previous IGP, the IGP, Shri A.K. Verma, who conducted promotion during 2003-2004 with the same standing order should not have derived a new and different meaning to the standing order already existing and issued by his predecessor contrary to the latter and spirit of the Police manual., Chapter V, exhibit D-14.
In respect of Article II the Enquiry Officer held:--
With reference to the charges under Article-II, I am of the opinion that the Charged Officer can not take plea of his interpretation on the basis of the past precedents. On availability of guidance by the IGP for publishing the list of Head Constables (leading Firemen) in the order of merit, the interpretation of the Charged Officer and the past precedence can not prevail and consider considered valid. The Charged Officer neither sought any clarification nor attempted to mention about his interpretations of the Standing Order No. 5297 dated 29.7.99 or cited any precedents before the authorities. Further the adoption of precedents can never justify an action as lawful when one is given clear instructions by his superior officer in best of his judgment. The Standing Officer by the Selection Committee and by the IGP also. In my opinion the Charged Officer had already lost his ground by not taking recourse to the lawful procedure of bringing to the notice of his authorities and seeking their instructions when he was confronted by his own interpretations of the said Order. It was not his business to sit in judgment over the propriety of the instructions rendered in writing by a superior officer. The charged officer after obtaining the clear instruction had no scope and reasons to alter the list-M intended and recommended by the Selection Committee and endorsed by the Head of the Department (the IGP) who specifically instructed to prepare the list- M, of the Head Constables (leading Firemen) considered fit for promotion to the rank of Assistant Sub-Inspectors (Sub--Officer) in the order of merit as recommended by the selection committee. He was required to act as per the instructions and not to temper the duly recommended list in defiance of the orders of his superiors. The evidences adduced are incriminating enough to indicate deliberate actions of the Charged Officer in misleading his superior Officers and DPC members. The evidences adduced establishes that the Charged Officer manipulated the list ''M'' deliberately, first by adding one extra candidate in list-M and second by rearranging them in the order of seniority (i.e. length of service) instead of the merit order which was established after conducting the promotion test Hence he violated the instruction of the standing Order 5297 dated 29.7.99 and the instructions of his superior officers. I hold the charge under Article-II is proved and Charged Officer Sh. KRR Nair is found guilty for the charge under Article II.
The petitioner submitted a detailed representation dated 13th February, 2007 to the Disciplinary Authority, against the report of the Enquiry Officer inter alia contending as follows:--
...the IO did not give any credence to the established procedures in regard to preparation of list L and M by way of the precedence set by the IGP who issued the standing orders exhibit p-2 which is being followed in connection with effecting promotions still now.
I would humbly like to invite the kind attention of Your Excellency to the contradicting state of affairs in the department while following one and the same Police Manual and the same set of Rules therein as referred to as para 10 herein above, that for preparation of list-N that is list of Asst. Sub-Inspectors considered fit for promotion as Sub-Inspectors, the principle for preparation of list-N in the standing order clearly lays down the inter se seniority as the criterion, provided qualifies the selection test, please see exhibit D-18 and 20, annexed hereto collectively marked as annexure-I.
The findings of the IO if accepted as such in regard to article of charge-II, it would signal that merit shall be criterion for the order of precedence in list L or M and this would render an atmosphere of loss of morale in the ranks and files of the Fire Brigade, since the personnel''s appreciate/accept the precedence already set in that connection since they had secured promotions as per the precedence set which would become bad in law and may have the fear of uncertainty about continued enjoyment of the career progression so far they had, because of unsettling the issues and principles based on which the promotions were awarded.
Hence, on the above premises, I humbly submit that 1 did not attempt to defy the orders and/or attempted to sit in judgment on the orders of my superior officers at any stage but whereas at all times endeavored to uphold the rule of law with all humility and acted in good faith without any malafides of any sort whatsoever and carried out the orders/directions of my superiors as a duty bound subordinate.
I would also humbly like to draw Your Excellency''s kind attention to the observation of the Principal Bench, New Delhi, of the Hon''ble Administrative Tribunal in OA No. 2379 of 1990, date of judgement 19.02.1993 and reported in the Swamy''s Case Law Digest at Sl. No. 447,1993, CAT, KG Sanmotra v. UOI, reading thus "when hierarchy of officers are involved in a process, a single person cant be blamed". Moreover, it is also submitted herein that "A mistake on the part of the employee can''t be equated with misconduct"; if at all any thing as such happened; as observed in the judgment/order dated 15.05.2002 in OA No. 640 of 2000, R.K. Mishra v. UOI & Ors. reported as Swamy''s News 75 (Ahmedabad) and appeared at Sl. No. 188 of Dec, 2002 of the Swamy''s News. Relevant extracts collectively annexed hereto marked as annexure-J.
However, by the impugned order No. 731 dated 5th March, 2007 the Disciplinary Authority imposed on the petitioner the major punishment of reduction in rank from the post of Chief Fire Officer to the lower post of Inspector Fire Brigade, until he was found fit by the Competent Authority to be restored to the higher post of Chief Fire Officer. The petitioner attained the age of retirement in 2010.
Even though the said impugned order of punishment runs into seven or eight pages, shorn of the brief recital of facts and the extracts from the Articles of charges, the defence of the petitioner and the findings of the Enquiry Officer, the impugned order of punishment is cryptic, devoid of reasons and non-speaking, there being no whisper of why the contentions of the petitioner in his representation against the finding of the Enquiry Officer with regard to the charge in Article II of the statement of Articles of charges were not accepted.
The relevant part of the said order is set out hereinbelow:--
AND WHEREAS, on careful consideration of the report of the Inquiry Officer and other records of the case in the light of the submission made by Shri. KRR Nair in his observations on report of the inquiry, the undersigned has decided to accept the findings of the Inquiring Officer in respect of Article of Charge No. II and hold that this charge stands proved.
Now, therefore, after considering the record of the Inquiry and the facts and circumstances of the case the undersigned has come to the conclusion that Shri KRR Nair deliberately manipulated the merit list, (List-M) i.e. promotion of Head Constables (leading Fireman) to the rank of ASI (Sub Officers) prepared by the competent Selection Board in accordance with the guidelines of the Standing Order No. 5297 dated 29.7.1999 issued by the Inspector General of Police.
The Charged Officer Shri. KRR Nair manipulated the list-M deliberately, first by adding extra candidate in list-M and second by re-arranging them in the Order of seniority (i.e. length of services) instead of the merit order, which was established after conducting the promotion test. Hence, he violated the Instruction of the Standing Order dated 5297 dated 29/7/1999 and the instructions of his Superior Officers.
The undersigned is of the view that ends of justice would be met if the following penalty is imposed on him:
Shri KRR Nair Chief Fire Officer (under suspension) is reduced to the lower post/grade/service of Inspector Fire Brigade until he is found fit by the competent authority to be restored to the higher post/grade/service of Chief Fire Officer
Accordingly, the aforesaid penalty is hereby imposed on Shri KRR Nair.
The petitioner has alleged that the petitioner''s representation dated 13th February, 2007 to the Disciplinary Authority was not examined by the Disciplinary Authority himself. The Disciplinary Authority did not independently apply his mind to the materials before him, but relied on his subordinate officers, who, instead of assisting the Disciplinary Authority to arrive at a fair decision, misled the Disciplinary Authority. According to the petitioner, the relevant file notings in the decision of the Disciplinary Authority, obtained pursuant to an application under the Right to Information Act, evince the role of subordinates.
Being aggrieved by the order of punishment dated 5th March, 2007, the petitioner preferred an appeal therefrom to His Excellency the Hon''ble President of India, being the Appellate Authority, on or about 20th July, 2007.
By an order dated 12th April, 2010 the Hon''ble President being the Appellate Authority rejected the appeal filed by the petitioner inter alia on the following grounds:--
The appellant was holding the post of Chief Fire Officer for a long period and he could have suitably apprised his higher officers about the constitution of the Selection Board/Selection Committee. His objections in this regard at this stage are nothing but after-thought to cover up the misconduct.
The Selection Committee recommended the promotion of meritorious candidates. Shri Nair sought the approval for putting up the list of selected candidates in List-M in order of seniority. The then IGP clearly stated-
The S.O. is clear. The list is to be prepared as per merit. May issue accordingly." Despite these instructions, the appellant did not publish the list of qualified candidates. He again sought approval of IGP for publishing List-M, as per standing order but deliberately made list-M in order of seniority instead of making it as per merit. The Order Book No. 2660 dated 24.12.2006 should have been named as list-M as per the approval accorded by IGP but the same was simply published without naming the list as List-M. The S.O. clearly says that - "the selection list will be prepared strictly according to merit.
� The instruction of IGP was clear that the List-M be prepared in order of merit & the appellant had no reason to act otherwise. The contention that on earlier occasion List M was prepared as per seniority has no merit since the misconduct conducted by him was that the defied the lawful/clear written instruction of the then IGP by deliberately manipulating the list.
� The procedure as laid down in CCS (CCA) Rules has been followed properly.
� The findings of the Disciplinary Authority are based on the evidence on record which had been taken into consideration by the LO. during the inquiry.
� Keeping in view the misconduct on the part of Shri K.R.R. Nair which has been proved during the inquiry on the basis of evidence on record, the penalty of reduction to the lower post/grade/service of Inspector Fire Brigade is justified.
The petitioner challenged the Order of punishment dated 5th March, 2007 and the order of the Appellate Authority dated 12th April, 2010, by filing an application u/s 19 of the Administrative Tribunals Act, 1985 before the learned Central Administrative Tribunal, Calcutta Bench on Circuit at Port Blair, being OA No. 210/AN/2010 has been dismissed by the judgment and order dated 16th September, 2010 impugned in this application under Article 227 of the Constitution of India.
In the instant case as observed above, there were three articles of charges against the petitioner of which the first article of charge, that is the charge of deliberate manipulation of the merit list for promotion of Constables (Firemen) to the rank of Head Constables (Leading Firemen), thereby favouring candidates lower in merit, certainly constituted a serious misconduct. However, the petitioner has been exonerated of the aforesaid charge. Similarly, the third article of charge against the of instigating some Constables (Firemen) to submit false and frivolous petitions, which is also a serious charge constituting misconduct, unbecoming of a police officer, has not been proved. The question is whether the second article of charge of deliberate manipulation at all discloses any misconduct.
The word ''manipulate'' is capable of different meanings. The most common meaning of the word ''manipulate'' is to do, use or control something in a skilful way. This, in itself, cannot constitute misconduct. The act of manipulation being a conscious act, the use of the adverb ''deliberately'' before the word ''manipulated'' is really a surplusage.
The meaning of the word manipulate'' as given in The New Shorter Oxford Dictionary (1993 Edition) is as follows:--
Manipulate/v,t, E19.(Back form. F. next, fater Fr. Manipuler. See -ATE.] Handle, esp. with (physical or mental) dexterity; manage, work, or treat by manual or mechanical means; manage by (esp. unfair) dexterous contrivance or influence;...; Med. Treat (part of the body, a fracture, etc.) by manual action; Computing carry out operations on (numbers, text, etc.).
E. FERBER Old Eusebio...was manipulating four cooking vessels at once. JOHN BROOKE A stupid man, manipulated by minds sharper and cleverer than his own. C, TOMAUN She manipulates her...friends and admirers, using the devotion she inspires for her own ends. Which? The Burglar usually forced or manipulated the window catch.
The meaning of the expression ''manipulate'' as given in ''Chambers 21st Century Dictionary (Revised Edition, reprinted in 2001) is as follows:--
Manipulate /> verb (manipulated, manipulating) 1 to handle something, or move or work it with the hands, especially in a skilful way. 2 to control or influence someone or something cleverly and unscrupulously, especially to one''s own advantage. 3 to give false appearance to something, change its character, etc. -manipulating the statistics to suit his argument. 4 to apply therapeutic treatment with the hands to (a part of the body). 5 word processing to move, edit or alter (data, files, blocks of text, etc), � manipulable or manipulatable adj � Manipulation noun � manipulative or manipulatory adj said of a person: given to or skilled in manipulating or exploiting people or circumstances, � manipulator noun a person or device that manipulates. 19c: a back-formation from 18c manipulation, ultimately from Latin mardpulus handful, from manus hand +plere to fill.
The meaning of the word ''manipulate'' as given in the New 8th Edition of Oxford Advanced Learners Dictionary is as follows:--
Manipulate Aw/verb 1 (disapproving) to control or influence sub/stn, often in a dishonest way so that they do not realize it:--sb/sth She uses her charm to manipulate people. � As a politician, he knows how to manipulate public opinion, � sb into sth/into doing sth They managed to manipulate us into agreeing to help. 2 - sth (formal) to control or use sth in a skilful way to manipulate the gears and levers of a machine � Computers are very efficient at manipulating information. 3 - sth (technical) to move person''s bones or joints into the correct position.
The statement of imputation of misbehaviour in support of the purported charge contained in Article II does not, in fact, support the aforesaid charge. The petitioner has been charged with deliberately manipulating the merit list ''list-M'' prepared by the competent selection board in accordance with the guidelines of the standing order No. 5297 dated 29th July, 1999. However, in the statement of imputation of misbehaviour and in particular the second and third paragraphs thereof, it is stated that the selection committee had declared four candidates qualified strictly on merit. List-M was to be prepared. Thus the IGP observed "list is to be prepared as per merit". The list-''M'' was prepared by the petitioner in order of seniority and published in Order Book No. 345 dated 13.02.2004.
Moreover, having regard to the ordinary meaning of the word ''manipulate'' in the context of a document, the word "manipulate'' would mean, doing something carefully to that document in the process of handling and/or interpreting that document. Since the petitioner himself prepared and published the list-''M'' in order book No. 345 dated 3rd February, 2004, actions of the petitioner, as alleged, could not, in our view, amount to manipulation.
In view of the conclusion of the Enquiry Officer that only the charge under Article II was proved and the petitioner was guilty of the charge under Article II, which has been accepted by the Disciplinary Authority, this Court may, in exercise of its power of judicial review examine whether the charge under Article II discloses misconduct. This charge is, in our view, vitiated by the vice of vagueness, since the word ''manipulate'' has more meanings than one, and in any case does not disclose any misconduct. Cleverness, cunningness or slyness cannot in our view constitute misconduct within the meaning of the CCS (Conduct) Rules even though some of those qualities may not morally be laudable. Where the charges framed are vague and do not specifically disclose misconduct, the same may be interfered with by the Courts and Tribunals in exercise of their power of review, even though the charge-sheeted officer may have participated in the enquiry. This proposition finds support from the judgment of the Supreme Court in Sawai Singh Vs. State of Rajasthan,
The petitioner''s challenge to the charge-sheet in OA 84/AM/2005 may not have succeeded, possibly since some of the articles of charges in the charge-sheet, of which the petitioner has now been exonerated, disclosed misconduct. The charge-sheet as a whole was not liable to interference by the Court/Tribunal in exercise of its power of judicial review, at the inception.
The petitioner was charged in Article II, with manipulation of merit list prepared by the competent selection board in accordance with the guidelines of Standing Order No. 5297 dated 29.7.1999. The Enquiry Officer has not adjudicated the question of competence of the Selection Board or the question of whether the selection board had prepared any list, and if so, whether that list was in accordance with the standing order. The Enquiry Officer in effect and substance proceeded on the assumption that any instruction of the IGP was immune from being questioned.
Summarized in a nutshell, the Enquiry Officer found that past precedent was not material in view of the IGP''s diktat to publish the list of Head Constables in order of merit. The petitioner had not sought any clarification or instructions, had not drawn the notice of his authorities to his interpretation of the concerned standing order and had not cited any precedents before the authorities. In any case, instructions given by a superior officer in the best of his judgement would prevail over precedents and was not open to question. The Enquiry Officer further found that the petitioner had defied the orders of his superior, misled the superior officers and DPC members and had manipulated list-M by adding one extra candidate in the list and by arranging the names of the candidates in the order of seniority in stead of merit, and thus violated the instructions in Standing Order No. 5297 dated 27th July, 1999 and the instructions of his superior officers.
The Enquiry Officer has purported to travel beyond the scope of the charge against the petitioner in Article II and hold the petitioner guilty of a totally different charge. The petitioner was neither charged with adding any extra candidate in the list nor with defying orders of his superior. The findings against the petitioner are also self-contradictory and inconsistent inasmuch as the finding of defying instructions cannot be reconciled with the finding of failure to seek instructions and/or clarifications. Moreover, the finding of the petitioner not drawing the notice of the concerned higher authority to his interpretation of the standing order is patently perverse and contradictory to the allegations and accusations against the petitioner.
Mr. Roshan appearing on behalf of the petitioner submitted that the petitioner was entitled to be heard on the quantum of punishment to be imposed on him. In support of his submission, Mr. Roshan cited the judgments of the Supreme Court in State Bank of India and Others Vs. Ranjit Kumar Chakraborty and Another, , Union of India and others Vs. Mohd. Ramzan Khan,
However, neither of the aforesaid judgements cited by Mr. Roshan are relevant in view of the amendment of Article 311(2) of the Constitution of India by the 42nd Constitutional Amendment Act whereby the right to be heard on the quantum of punishment has been taken away. The judgement of the Supreme Court in State Bank of India v. Ranjit Kumar Chakraborty (supra) was rendered in an entirely different factual situation, where the authority competent to award major punishment had not heard the employee at all, and in the context of the applicable rules and not in the context of the Central Civil Services (Classification, Control and Appeal) Rules, and/or the Central Civil Services (Conduct) Rules. Mohd Ramzan Khan''s case (supra) is also not an authority for the proposition that an officer or employee controlled by the Central Civil Services Rules would be entitled to be heard on the quantum of punishment, notwithstanding the amendment of Article 311(2) of the Constitution.
However, in Indian Administrative Law, an Administrative Authority discharging quasi-judicial functions is obliged to give reasons for its decision. In S.N. Mukherjee Vs. Union of India, , a Constitution Bench of the Supreme Court summarized and explained the law holding:--
The decisions of this Court referred to above indicate that with regard to the requirement to record reasons the approach of this Court is more in line with that of the American Courts. An important consideration which has weighed with the Court for holding that an administrative authority exercising quasi judicial Junctions must record the reasons for its decision, is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Court under Article 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to effectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons would (i) guarantee consideration by the authority; (ii) introduce clarity in the decisions; and (iii) minimise chances of arbitrariness in decision-making....
Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial junctions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision-making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review.... What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge.
The impugned order of punishment dated 5th March, 2007 is, as observed, above a non-speaking order, devoid of reasons and is, therefore, violative of the principles of natural justice. The contention of the petitioner with regard to the Enquiry Report in respect of Article II has not at all been dealt with.
In G. Vallikumari Vs. Andhra Education Society and Others, the Supreme Court held that removal of an employee from service without recording reasons, but by simply referring to the Enquiry Report was in violation of the principles of natural justice. The proposition in our view applies equally to reduction in rank, which involves serious civil consequences. In this case the Enquiry Officer has merely extracted the Article of charges, the defence of the petitioner, the findings of the Enquiry Officer and imposed the penalty of reduction in rank without disclosing any reasons whatsoever for imposing such punishment. The impugned order of punishment is thus in flagrant violation of principles of natural justice and is liable to set aside.
The impugned order of the Appellate Authority discloses some reasons, even though all the contentions of the petitioner have not been dealt with in any case a reasoned Appellate Order cannot validate an inherently invalid, non-speaking original order, passed in violation of the principles of natural justice.
The impugned Appellate Order is also violative of the principles of natural justice in that the Appellate Authority has purported to introduce a new charge by rejecting the appeal of the petitioner on inter alia the ground that he had defied lawful clear written instruction of the then IGP by deliberately manipulating the list. This was not the charge against the petitioner in Article II, the only charge held proved. The petitioner was never charged with deliberate defiance of lawful or clear instructions of the then IGP. The orders of punishment and the appellate order are thus not sustainable in law.
Both the Disciplinary Authority and the Appellate Authority overlooked the fact that the Enquiry Officer did not outright, reject the contention of the petitioner that the petitioner had acted as per his understanding of the concerned standing order read with Rules as contained in the Andaman and Nicobar Police Manual, but held against the petitioner for his omission to seek clarification. It is well settled that error of judgment or omission to take extra care cannot and does not constitute misconduct.
The Disciplinary Authority as well as the Appellate Authority apparently did not consider the question of whether the petitioner could be held responsible for the promotion of M. Rambir, who stood 4th in the merit list, when the entire papers and records including the marks on merits obtained by the respective candidates had been placed before the Departmental Promotion Committee held on 18th February, 2004, chaired by the IGP and more so when the petitioner was not a member of the Departmental Promotion Committee. Neither the Disciplinary Authority nor the Appellate Authority took into account the specific contention of the petitioner that a single person cannot be blamed when a hierarchy of officers are involved in a process.
There can be no doubt that the power of Courts and Tribunals to interfere with disciplinary action is limited. The Courts and Tribunals do not, in exercise of their power of judicial review, reappraise evidence. Nor do the power of Courts and Tribunals exercising the power of judicial review ordinarily sit in appeal over orders of Disciplinary Authorities and/or Appellate Authorities. Findings in disciplinary proceedings are not interfered with in exercise of the power of in judicial review only because two views are possible and the Court and/or Tribunal prefers the other view. An order of punishment is not interfered with, unless it is shockingly disproportionate to the gravity of the misconduct. The propositions laid down by the Supreme Court on the power of review of Courts and Tribunals in the various judgments referred to in the impugned judgment and order are unexceptionable.
While the learned Tribunal rightly held that Courts and Tribunals, in exercise of their power of judicial review do not sit in appeal over findings in enquiry and decisions of Disciplinary and Appellate Authorities, the learned Tribunal fell in error in not appreciating that the learned Tribunal was not invited to sit in appeal over any factual finding of the Enquiry Officer. The Enquiry Report in respect of Article II suffered from serious infirmities as noted above.
It is well-settled that the finding of an Enquiry Officer which is perverse of betrays the doctrine of proportionality can be interfered with by Courts and Tribunals in exercise of their power of judicial review. There exists a distinction between a decision on merits and an infirmity in the decision making process. When there is no infirmity in the decision making process the Court does not ordinarily interfere with the merit of the decision.
However, violation of principles of natural justice, procedural irregularity, irrationality, arbitrariness and patent illegality vitiate the decision making process. An infirm charge-sheet is violative of the principles of natural justice and vitiates the entire decision making process.
It is well settled that the charge-sheet must contain some accusation of misconduct. The question of whether the facts alleged and/or proved constitute any act of misconduct or not is subject to judicial review of Courts and Tribunals. Courts and Tribunals are duty bound to interfere when there is a patent legal infirmity in a quasi-judicial order.
The Enquiry Officer being a fact finding body is only required to enquire into the allegations in the charge-sheet/Articles of charges and ascertain whether the allegations were correct or not. It is not for the Enquiry Officer to adjudicate the question of whether the allegations in the charge-sheet constitute misconduct entailing the punishment of major penalty or not and the Enquiry Officer has not done so.
The punishment of reduction in rank is a major punishment which may be reviewed by Courts and Tribunals on the same grounds which are applicable to other punishments including the ground of disproportionality to the gravity of the allegations against the charge sheeted officer. Even assuming that the allegations against the petitioner in Article II constitute misconduct, in effect and substance it is alleged that the petitioner arranged the names of candidates selected for promotion in order of seniority instead of merit, which was admittedly the practice in earlier years. We cannot but hold that the punishment imposed on the petitioner is shockingly disproportionate to the charge against him in Article II of the statement of Articles of charges.
The entire proceedings against the petitioner smacks of bias and closed mind. The enquiry authority, the Disciplinary Authority as well as the Appellate Authority have all been swayed by the pre-conceived notion that the order passed by the IGP, a superior authority was immune to any kind of question and failure to follow the same would constitute serious misconduct, irrespective of the correctness, legality or rationality thereof, irrespective of past practice and irrespective of whether such order was in conformity with the instructions in the Police Manual. The legality and/or correctness of the instructions of the IGP were never examined in the light of the contentions of the petitioner. The major punishment of reduction in rank has been imposed, for preparing a list in order of seniority instead of merit, completely ignoring the service records of the petitioner and in particular the fact that the petitioner had been awarded the President''s Police Medal for meritorious service and the President''s Police Medal for distinguished service and there was no complaint against the petitioner in the past.
For the reasons discussed above the impugned judgment and order of the learned Tribunal cannot be sustained and the same is set aside. The impugned order dated 5th March, 2007 of the Disciplinary Authority and the impugned Appellate Order dated 12th April, 2010 are also set aside and quashed. This writ application is disposed of accordingly. There will be no order as to costs.
Urgent Photostat certified copy of this judgment and/or order, if applied for, be supplied to the parties subject to compliance of all requisite formalities.
Kanwaljit Singh Ahluwalia, J.
I agree.