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Judgment
ORDER
Hon’ble Mr. Justice Om Prakash-VII, Member (J)
The present O.A. has been filed under Section 19 of the Administrative Tribunals Act, 1985 with the following reliefs:-
i)This Hon’ble Tribunal may graciously be pleased to quash and set aside the order dated 8.10.2014 passed by the respondent No. 4.
ii) This Hon’ble Tribunal may be pleased to direct the respondents to allow the applicant to discharge his duties till his superannuation i.e. 30.11.2014.
iii) This Hon’ble Tribunal may be leased to direct the respondents to pay the entire retiral dues to the applicant including pension and other consequential benefits.
iv) Any other relief which this Hon’ble Tribunal may deem fit and proper in the circumstances of the case may be given in favour of the applicant.
v)Award the costs of the Original Application in favour of the applicant.
vi) This Hon’ble Tribunal may graciously be pleased to quashed the appellate order dated 26.4.2018 passed by the Director, Postal Services, Gorakhpur.
The facts emerges from the O.A. are that the applicant while working as Wireman “C” in the office of respondent No. 4 made complaint against the respondent No. 4, i.e. Senior Superintendent of Post Offices, Azamgarh Division, Azamgarh as well as the Staff Assistant Sri Sachchidanand Yadav. Respondent No. 4 issued four consecutive charge sheets against the applicant on 23.10.2013,24.10.2013, 24.10.2013 and 13.11.2013. Respondents again issued charge sheet dated 10.12.2013. An enquiry was conducted against the applicant by Sri R.D. Yadav. The applicant was served with the ex-parte inquiry report by respondent No. 4 on 26.12.2013 for submitting his representation within 10 days. Applicant submitted representation on 1.10.2014. Vide order dated 8.10.2014, punishment of dismissal from service has been awarded to the applicant by the disciplinary authority. Aforesaid penalty have been served upon the applicant about one month earlier to his retirement on 30.11.2014. Applicant preferred an appeal on 8.11.2017 before the Appellate Authority. Vide order dated 26.4.2018, appellate authority dismissed the appeal of the applicant.
Per contra, learned counsel for the respondents filed counter reply, stating therein that applicant directly made a complaint before the Post Master General, Gorakhpur Region, Gorakhpur which culminated into initiation of an enquiry through the complaint Inspector of Post Office, Azamgarh Division. Applicant was served with a memo of charges under Rule 14 of CCS (CCA) Rules, 1965 on 10.12.2013 since the applicant had crossed the boundary of indiscipline as well as failed to maintain the decorum of the office while discharging his duties. The applicant used unparliamentarily language for an official and exchanged hot conversation with Senior Post Master, Azamgarh in his chamber. The activity of the applicant was beyond tolerance and the same cannot be expected from the govt. servants. After serving the charge sheet upon the applicant, proper disciplinary proceeding was initiated against the applicant. Enquiry Officer and Presenting Officer were appointed. Enquiry officer conducted the enquiry but the applicant has not participated in the enquiry. Enquiry officer submitted his enquiry report on 12.9.2014. A copy of the enquiry report was served upon the applicant through registered post. After receiving the enquiry report, applicant submitted a letter dated 1.10.2014. After careful consideration of enquiry report dated 12.9.2014, punishment of dismissal from service was awarded by the disciplinary authority on 8.10.2014. Appeal preferred by the applicant on 8.11.2017 has also been dismissed vide impugned order dated 26.4.2018.
Heard learned counsel for the parties.
Submission of the learned counsel for the applicant is that an ex-party inquiry was initiated against the applicant in gross violation of Article 311 (2) of the Constitution of India and without giving opportunity of hearing to the applicant. It is further argued that applicant has submitted that applicant was on medical leave from 1.11.2013 and he could not submit his reply on the ground of sickness. It is contended that disciplinary proceedings has been initiated against the Rule 14(18) of CCS (CCA) Rules, 1965 and proper opportunity has not been given to the applicant to defence himself. It is further argued that punishment awarded to the applicant is too harsh and is liable to be quashed.
Learned counsel for applicant has also filed written submission by which he has reiterated the facts as stated in the O.A. However, it is further submitted that charges against the applicant is that on 15.10.2012, the applicant used un-parliamentary language against Store Incharge Shri Sachidanand Yadav and went to the chamber of Senior Post Master and shouted but did not submit any written complaint against store incharge. It is further submitted that applicant regularly submitted applications regarding his illness before the Disciplinary Authority for postponement of inquiry but without considering the request of the applicant, enquiry officer submitted his report and held the applicant guilty of the charges. It is further stated that inquiry report shows that Inquiry officer has also not examined the prosecution witnesses and on the basis of their preliminary statement, proved the charges against the applicant. Learned counsel for applicant has also relied upon on the case of Union of India Vs. I.S. Singh 1995( Supple. 2) SCC 518 to substantiate his claim that if there is an adjournment on the ground of illness, the inquiry proceeding shall be kept pending on the ground of illness of the charge employee. He has also relied upon the judgment of Hon’ble Supreme Court in the case of Girish Bhushan Goel Vs. BHEL and others in Civil Appeal No. 9668-69 of 2013 with 9670/2013 in which Hon’ble Apex Court has held that Punishment of dismissal so as to deprive the official of pension and other retiral dues was shocking disproportionate, is not sustainable in the eyes of law.
Learned counsel for the respondents argued that applicant was awarded several penalties on the ground of disobedience and indiscipline. Earlier applicant had been issued charge sheets against which applicant has filed O.A. No. 188/2014 which is still pending before this Tribunal. Applicant had made directly a complaint before the Post Master General, Gorakhpur Region, Gurakhpur. Applicant was issued charge sheet dated 10.12.2013 for using unparliamentarily language against Senior Post Master, Azamgarh and exchanged hot conversation. Since the activity of the applicant was beyond tolerance, he was issued charge sheet on 10.12.2013. Proper enquiry was conducted. Applicant did not participate in the enquiry. Enquiry officer submitted ex-party enquiry report which was conveyed to the applicant and on the basis of enquiry report and reply submitted by the applicant, dismissal order was passed. There is no irregularity in the impugned orders and O.A. is liable to be dismissed.
Learned counsel for respondents has also filed written submission, by which he has reiterated the facts as stated in the C.A. However, he has again submitted that disciplinary authority has given reasonable opportunity to the applicant to defend himself but applicant has not cooperated in the inquiry proceeding and not participated for the reason best known to him. He has also relied upon the following case laws: i) Union of India Vs. P. Gunasekaran 2015 (2) SCC page 610 ii) B.C.Chaturvedi Vs. Union of India and others 1995(6) SCC 749
We have considered the rival submissions of the parties and have gone through the entire record.
From perusal of record, it is evident that charges leveled against the applicant is hot conservation against the senior officers. Applicant was given time to file defence reply but applicant has not submitted his reply nor attended the enquiry proceedings. Enquiry officer submitted ex-parte enquiry report and on the basis of enquiry report, disciplinary authority passed the punishment order of removal. In the instant case Rule 14(18) of the CCS (CCA) Rules, 1965 have not been followed. The punishment awarded to the applicant from removal from service is also shockingly disproportionate to the charges leveled against the applicant. Only on the ground of hot conservation, dismissal from service is shockingly disproportionate.
Rule 14 (18) of CCS (CCA) Rules, 1965 also provides that if the applicant had not examined himself as a witness, it was incumbent upon the enquiry officer to put evidence adduced against the applicant during the enquiry. Rule 14(18) of CCS (CCA) Rules, 1965 are reproduced below:-
(18)The Inquiring Authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Govt. servant to explain any circumstances appearing in the evidence against him.”
In the instant case Rule 14(18) of CCS (CCS) Rules, 1965 have not been followed. No opportunity was given to the applicant to explain the facts as required. Merely furnishing a defence note will not be sufficient to waive the provision of aforesaid Rules. The aforesaid provision is mandatory in the circumstances when the charged officer has not examined himself/herself as witness. In that circumstances, it was imperative upon the Enquiry Officer to follow the provision of Rule 14 (18) of the CCS (CCA) Rules, 1965. The view of the Tribunal finds support with the law laid down by the Hon’ble Apex Court in the case of Ministry of Finance and another Vs. S.B. Ramesh reported in LAWS(SC) 1998-2-28 decided on 2.2.1998 and Hon’ble Delhi High Court in the case of Union of India and another Vs. D.S. Manchanda (W.P. (C ) No. 215/2009 decided on 10th March, 2021.
In the case of Union of India and others Vs. P. Gunasekaran (supra), Hon’ble Apex Court has observed as under:-
“The disciplinary authority, on scanning the inquiry report and having accepted it, after discussing the available and admissible evidence on the charge, and the Central Administrative Tribunal having endorsed the view of the disciplinary authority, it was not at all open to the High Court to re-appreciate the evidence in exercise of its jurisdiction under Article 226/227 of the Constitution of India. Equally, it was not open to the High Court, in exercise of its jurisdiction under Article 226/227 of the Constitution of India, to go into the proportionality of punishment so long as the punishment does not shock the conscience of the court. In the instant case, the disciplinary authority has come to the conclusion that the respondent lacked integrity. No doubt, there are no measurable standards as to what is integrity in service jurisprudence but certainly there are indicators for such assessment. Integrity according to Oxford dictionary is "moral uprightness; honesty". It takes in its sweep, probity, innocence, trustfulness, openness, sincerity, blamelessness, immaculacy, rectitude, uprightness, virtuousness, righteousness, goodness, cleanness, decency, honour, reputation, nobility, irreproachability, purity, respectability, genuineness, moral excellence etc. In short, it depicts sterling character with firm adherence to a code of moral values. The impugned conduct of the respondent working as Deputy Office Superintendent in a sensitive department of Central Excise, according to the disciplinary authority, reflected lack of integrity warranting discontinuance in service. That view has been endorsed by the Central Administrative Tribunal also. Thereafter, it is not open to the High Court to go into the proportionality of punishment or substitute the same with a lesser or different punishment. These aspects have been discussed at quite length by this Court in several decisions including B.C. Chaturvedi v. Union of India and others[5], Union of India and another v. G. Ganayutham[6], Om Kumar and others v. Union of India[7], Coimbatore District Central Cooperative Bank v. Coimbatore District Central Cooperative Bank Employees Association and another[8], Chairman-cum- Managing Director, Coal India Limited and another v. Mukul Kumar Choudhuri and others[9] and the recent one in Chennai Metropolitan Water Supply (supra).”
The Hon’ble Apex Court in the case of B.C. Chaturvedi Vs. Union of India reported in 1995 Law Suit (SC) 1015 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. 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.
22.The aforesaid has, therefore, to be avoided and I have no doubt that a High Court would be within its jurisdiction to modify the punishment/penalty by moulding the relief, which power it undoubtedly has, in view of long line of decisions of this Court, to which reference is not deemed necessary, as the position is well settled in law. It may, however, be stated that this power of moulding relief in cases of the present nature can be invoked by a High Court only when the punishment/penalty awarded shocks the judicial conscience.”
Again in the case of Union of India Vs. S.S. Ahluwalia reported in 2007 Law Suit (SC) 950, the Hon’ble Apex Court has been pleased to observe as under:-
“The scope of judicial review in the matter of imposition of penalty as a result of disciplinary proceedings is very limited. The court can interfere with the punishment only if it finds the same to be shockingly disproportionate to the charges found to be proved. In such a case the court is to remit the matter to the disciplinary authority for reconsideration of the punishment. In an appropriate case in order to avoid delay the court can itself impose lesser penalty.”
In the case of State of Meghalaya Vs. Mecken Singh N Marak reported in 2009 Law Suit (SC) 1935, the Hon’ble Apex Court has also held as under:-
“A court or a tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment is not commensurate with the proved charges. In the matter of imposition of sentence, the scope for interference is very limited and restricted to exceptional cases. The jurisdiction of High Court, to interfere with the quantum of punishment is limited and cannot be exercised without sufficient reasons. The High Court, although has jurisdiction in appropriate case, to consider the question in regard to the quantum of punishment, but it has a limited role to play. It is now well settled that the High Courts, in exercise of powers under Article 226, do not interfere with the quantum of punishment unless there exist sufficient reasons therefore. The punishment imposed by the disciplinary authority or the Appellate Authority unless shocking to the conscience of the court, cannot be subjected to judicial review.”
In the case of Director General , RPF Vs. Sai Babu reported in 2003 Law Suit (SC) 117, the Hon’ble Apex Court has been pleased to hold as under:-
“4.Shri Mukul Rohtagi, learned Additional Solicitor General appearing for the appellants urged that the learned Single Judge was not right and justified in modifying the order of punishment, having observed that the respondent was a habitual offender and due to dereliction of duties, the punishment of stoppage of increments for three years was already ordered in 1984 and that there was no improvement in the conduct of the respondent. He alternatively submitted even if the learned Single Judge was of the view that the punishment imposed was grossly or shockingly disproportionate, punishment could not have been modified but the matter could be remitted to the disciplinary authority to re-examine the issue in regard to the imposition of penalty on the respondent. He further submitted that the Division Bench of the High Court did not go into the merits of the contentions and simply endorsed the view taken by the learned Single Judge.”
Going through the above judgments, the legal position is clear that the power of High Court or the Tribunal is very limited while exercising the power of judicial review, so far as it relates to the quantum of punishment. However, the Supreme Court consistently held that if the punishment imposed was grossly or shockingly disproportionate, then the court can review the order and remand the matter to the appellate authority or disciplinary authority as the case may be for reconsideration. As far as case law relied upon by the learned counsel for the respondents is concerned, in that case, applicant while working as Deputy Officer Superintendent, Central Excise was arrested by Police in a Criminal case but in the instant case, dismissal order was passed only on the allegation of hot conservation with senior officer. Hence, case law relied upon by the learned counsel for respondent will not support the case of the respondents.
So far as the proof of charge is concerned, the applicant and respondents have their stands but the court without entering into the controversy of proof of charge, considered that even if the charges are deemed to be proved and the applicant was given ample opportunity to defend his case during the enquiry, still the facts remains that the decision of dismissal from service is quite harsh and hit conscience of the Court. Perusal of the record also reveals that it is an admitted fact that the applicant did not examine himself as a witness. Since the applicant had not examined himself as a witness, it was incumbent upon the enquiry officer to put evidence adduced against the applicant during the enquiry to him in compliance of provision of Rule 14(18) of CCS (CCA) Rules, 1965. The said rule has not been followed by the respondents. As discussed, above, since the punishment awarded by the respondents is too harsh, there is violation of provision of Rule 14(18) of the CCS (CCA), Rules, 1965, the court have no option but to quash the orders passed by the disciplinary authority as well as appellate authority.
Accordingly, O.A. is allowed, Impugned orders dated 8.10.2014 and 26.4.2918 are quashed. Respondents are directed to release all retiral dues to the applicant including pension with consequential benefits. However, respondents are at liberty to take necessary action against the applicant, if they so wishes in accordance with the procedure and rules and pass a fresh order against the applicant, keeping in view the gravity of charges leveled against the applicant within a period of 3 months from the date of receipt of certified copy of this order.
As a sequel, Misc. Applications pending if any, in this case, shall also stands disposed off.
There shall be no order as to costs.