JUDGMENT
S.B. Sinha, C.J.
1. The original applicant before the Central Administrative Tribunal, Principal Bench, New Delhi (in short, ‘the Tribunal’) is the writ petitioner herein. He is aggrieved by an Order dated 04.01.1999 passed by the learned Tribunal in O.A. No. 748 of 1995 whereby and whereunder his Original Application, questioning an order dated 16.12.1994, passed by the appellate authority in terms whereof the
order of removal passed by the disciplinary authority modifying imposition of punishment of compulsory retirement upon the petitioner, was dismissed.
2. The basic fact of the matter is not in dispute.
The petitioner, at all material times, was working as Supervisor B/S Grade I in the Office of Chief Engineer in Military Engineering Service (in short, ‘MES’) under the Ministry of defense, He later on was promoted as Barrack and Store Officer (Group B post) in the year 1985. He was transferred to Suratgarh from Delhi on 20.09.1985, which order he assailed before this Court by filing a writ petition. The said writ petition was later on transferred to the Tribunal. The Tribunal vacated the interim order of stay passed by this Court on 29.07.1986.
A charge-sheet was drawn up against the petitioner on or about 21.10.1986 as he failed/neglected to join his transferred post. Allegedly, as the said charge-sheet could not be served upon him personally, the same was sent by registered post. Thereafter the notices were also published in Urdu and English newspapers on 15.01.1987 and 24.02.1987 respectively.
An enquiry was started in relation to the said charge-sheet on or about 28.02.1987. He participated in the said enquiry in May, 1987, but since June, 1987, he did not take part therein. The Inquiry Officer submitted a report wherein inter alia it was held that the charges against the
petitioner were proved. Relying on or on the basis of the said report, the disciplinary authority passed an order of removal from service against the petitioner on or about 24.08.1987. Thereagainst the petitioner filed an original application, which was marked as O.A. No. 214 of 1988. Therein he had also prayed for quashing of the said public notices issued by the respondent informing him that he had been awarded the punishment of removal from service. He had filed other original applications also, with which we are not concerned in the present proceeding.
3. In the aforesaid Original Application, the petitioner inter alia raised a contention that the enquiry in question indeed was merely a fact finding one and not a regular enquiry as no charge-sheet had been served upon him. The Tribunal in its Order dated 09.06.1989 upon taking into consideration the materials on records held :-
“In our opinion, the holding of ex-parte enquiry
in the facts and circumstances of the case cannot be
held to be unjustified. Consequently … … …”
However, having regard to the facts and circumstances of this case, the Tribunal was of the opinion that the quantum of punishment imposed upon the petitioner deserves reconsideration in the light of the observations made in paragraph 45 thereof; wherefor the petitioner was granted liberty to prefer an appeal before the appellate authority against the impugned order of removal from service on 24.08.1987. It was directed :-
“The Appellate Authority shall dispose of the appeal as early as possible but in any event not later than three months from the date of receipt of the appeal preferred by the applicant and pass a speaking order. The Appellate Authority should give due consideration to the observations made in paras 43 to 46 above. In case the applicant is aggrieved by the decision of the Appellate Authority, he will be at liberty to file a fresh application in this Tribunal in accordance with law, if he is so advised.”
4. Pursuant to or in furtherance of the said directions, an
appeal was preferred by the petitioner before the appellate
authority on 16.06.1989. The petitioner, however, did not
question that part of the Order of the learned Tribunal,
whereby and whereunder the ex-parte enquiry held against
him had been held to be valid. The said appeal of the
petitioner was rejected by an Order dated 23.11.1989,
whereagainst he again filed an original application before
the learned Tribunal, which was marked as O.A. No. 2044
of 1990.
5. It appears that a question arose as to whether the civilians working in MES come within the purview of Section 14 of the Administrative Tribunals Act or not. By an Order dated 16.12.1993 the matter was referred to a Full Bench of the Tribunal. The said Order dated 16.12.1993 is not on record. The Full Bench of the Tribunal in its judgment dated 21.03.1994 observed :-
“The Original Application came for hearing before a Division Bench and was disposed of by the Order dated 16-12-93 with the observation that the case may be placed before a Larger Bench of the Tribunal to determine whether the disciplinary proceedings conducted against the applicant are legally valid or not and further to what extent, if any, the relief prayed for by the applicant in this case may be allowed to him.”
6. Before the Full Bench of the Tribunal, a preliminary objection was raised that in view of the findings of the Tribunal in O.A. No. 214 of 1988, it cannot go into the merit of the matter but the said plea was negated. The Full Bench of the Tribunal, however, upon referring to various decisions arrived at a finding that the provisions of CCS (CCA) Rules, 1965 (in short, ‘the said Rules’) would be applicable to civilian employees of the defense Services. The learned Tribunal observed :-
“In OA 2148/88 in para 45, the Tribunal has already observed that imposition of penalty of removal from service entails forfeiture of proportionate pension and other retirement benefits. The para 45 of the said judgment has been quoted in full above. The appellate authority has not considered this aspect also. The scope of the Tribunal to interfere in the quantum of punishment is very limited and that is why the appellate authority was directed to consider this aspect also while considering the appeal of the applicant. However, the appellate authority totally ignored this direction. This is all the more necessary in view of the decision of the Hon’ble Supreme Court in the case of RAM CHANDER v. UNION OF INDIA reported in 1986 VOL.II SLJ page 240. The Hon’ble Supreme Court in the aforesaid case held that the appellate authority has to consider from every angle the various grounds taken by the appellant in the memo of appeal and after giving a personal hearing, since the enquiry report was not given at earlier stage dispose of the same. In this case, the appellate authority has not considered this particular aspect.”
The Full Bench of the Tribunal noticed that the Division Bench of the Tribunal in O.A. No. 214 of 1988 had not adversely commented upon the proceedings of ex-parte enquiry and it was felt that the appellate authority had not seriously applied its mind to the quantum of punishment awarded to the applicant despite the specific directions issued in this behalf in the earlier decision dated 09.06.1989 in the said O.A. No. 214 of 1988. It was held :-
“17. We have come to the conclusion that the punishment in this case is harsh for the following reasons :-
(a) That the applicant could not join the place of transfer as per transfer order of 20.9.85 because of interim stay granted by the Delhi High Court by order dated 16.10.85. The stay was vacated on 29.7.86 by the Tribunal when the writ petition stood transferred under Section 29 of the AT Act 1985. However, the applicant has been charged for unauthorized absence for this period also in the charge-sheet drawn against him in October, 1986;
(b) The applicant has taken the stand that he went to join his duty on 4.8.86 and there is certain material on record also that the applicant went to Suratgarh but the respondents have denied this fact;
(c) The applicant has applied for seeking voluntary retirement from service before the commencement of the inquiry by a notice but the respondents had sent a reply to him by the memo dated 30.4.87 that he should apply for the same according to rules. He has applied to the Chief Engineer, Bhatinda Zone, Suratgarh. This reply to the applicant was given much after a period of three months has expired;
(d) There is no allegation of any misconduct on account of either insubordination or of lack of integrity or aggressive behavior or corruption during the whole tenure of service of the applicant, which is about 26 years.
18. The application, therefore, is partly allowed. The order of the appellate authority rejecting the appeal of the applicant is quashed. The appellate authority shall decide the appeal of the applicant after giving him personal hearing. The appellate authority shall consider whether the quantum of punishment is commensurate with the misconduct which is only of non-joining on the post as per transfer order which itself was assailed by the applicant before the Delhi High Court. The appellate authority will also, while disposing of the appeal, take the mitigating circumstances observed in the last para. The directions given in the earlier order of OA 214/88 should also be taken into account. The appellate authority may dispose of the appeal within six months from the date of receipt of a copy of this order. Parties are left to bear their own costs.”
7. Pursuant to or in furtherance of the aforesaid directions, the matter was again considered by the appellate authority upon giving an opportunity of hearing to the petitioner and by reason of the order impugned before the Tribunal dated 16.12.1994, it considered the matter in great detail and held :-
“AND WHEREAS, the undersigned, after taking into consideration all the reasons/observations/directions made in OA 214/88, OA 2044/90 and MA 3451/94 in OA 2044/90 (Extn. Of time) of Hon’ble CAT, principal Bench, New Delhi, as well as all the plea & grievances raised by the applicant in his various letters as also during the course of ‘Personal-hearing’ and all facts of the case inter alia the effect on the family members of the applicant dependent on him for survival & sustenance in the evening o his life, consider that the penalty awarded to him earlier vide CE WC, Chandimandir vide Order No. 31000/404/104/EID dt-24 Aug’ 87 is harsh.
AND NOW THEREFORE, in exercise of powers under Rule-27(2) of CCS (CC&A) Rules, 1965 the undersigned, hereby modify the punishment order of Disciplinary Authority by imposing penalty of “Compulsory Retirement” instead of “Removal from service which shall not be a disqualification for future employment under the Govt.” w.e.f. 14 Sep ’87 (when the punishment order was served on him) in order to make it compatible with circumstances of the case.
I further direct that the concerned administrative authorities shall pay all the arrears due as per rules as also initiate action to pay pension within four months. Shri Gulati shall render all co-operation and submit the pension papers as required under rules.”
8. Yet again, an Original Application was filed questioning the said Order. The said Original Application was marked as O.A. No. 748 of 1995. By an Order dated 06.06.1995, the Tribunal passed the following interim directions :-
“In the facts and circumstances of the case, we are satisfied that this is a fit case for granting interim relief to the following extent :
(i) The applicant shall be permitted to sign the necessary pension papers in the office of the respondent No. 2 - Army Headquarters, Engineer-in-Chief Branch, New Delhi : (ii) Respondent No. 2 shall release the provisional pension as due under the Rules to the applicant within a period of 10 days from today, failing which the respondents shall pay an ad hoc amount of Rs. 3000/- (Three thousand Rupees) to the applicant which shall be adjusted against the final pension and other amounts due to him as per rules : (iii) Respondent No. 2 is further directed to take necessary action towards the payment of pension and other arrears due to the applicant as per rules within one month." 9. On 03.07.1995, a statement was made before the Tribunal that the petitioner had been paid a sum of Rs. 3,000/- and he had also signed most of the papers for finalizing pension claim, but a few documents were yet to be signed. 10. By a judgment dated 04.01.1999, which is impugned in this writ petition, the Tribunal dismissed the said Original Application. It was held :-
“The applicant has vehemently argued that the punishment of compulsory retirement should have been made effective from the date of the appellate order i.e. 16.12.1994 and not from the back date i.e. 14.9.11987. This contention obviously proceeds on the basis as if the punishment order had earlier been set aside or quashed by the Tribunal. But that is not the case here. While disposing of the OA 214/88 the Tribunal only directed the applicant to file an appeal, which would be considered on merit by the appellate authority, who would decide the appeal within the time fixed by the Tribunal. There is no direction in that judgment about quashing of the punishment order. As a matter of fact some indulgence was shown by the Tribunal to the applicant allowing him to file an appeal later and giving him the opportunity to assail the appellate order so passed when normally the OA itself could have been dismissed on the ground that the departmental remedy had not been exhausted by the applicant. Similarly, in the Full Bench judgment also there was no direction quashing the punishment order. It was only the appellate order that was quashed and the appellate authority was directed to consider the appeal afresh and pass a reasoned order. Thus, the applicant’s contention that after the disposal of the earlier OAs, he should be deemed to have continued in service or to have been reverted back to the position held by him prior to the issuance of the punishment order in the year 1987 cannot be accepted.”
11. Mr. Gulati, the petitioner, who has appeared in person, had raised a number of contentions although some of which are patently untenable. The petitioner contended that the appellate authority, being not the disciplinary authority, had no jurisdiction to impose punishment. In any event, contends the petitioner that the order of compulsory
retirement could not have been given a retrospective effect. He would urge that in the instant case there had been no departmental enquiry as no charge-sheet had been served upon him.
He would also urge that in the purported domestic enquiry mandatory procedures, as laid down in Rule 14(3) and 14(11) of the said Rules had not been followed.
According to the petitioner, the enquiry wherein he participated at Suratgarh was a fact-finding enquiry and in view of the fact that he had voluntarily retired from the services, no disciplinary enquiry could be held against him.
The petitioner would contend that as he had retired, in the meantime, he is entitled to his arrears of pay as also the pension.
He had also assailed the Order of the Division Bench of the Tribunal dated 09.06.1989. He would submit that Full Bench of the Tribunal also committed a serious error in relying upon the said Order passed by the Division Bench of the Tribunal in O.A. No. 214 of 1998.
He had also drawn our attention to the statements made in the counter affidavit to the effect that the order of punishment had been set aside.
In support of the aforementioned contentions, strong reliance had been placed on S.D. Bhardwaj v. Union of India
and Ors. , 1983(1) SLR 32, State Bank of Patiala and Ors. v. S.K. Sharma , N. Narasimhaiah and Ors. etc. v. State of Karnataka and Ors. Union of India and Ors. , A.R. Antulay v. R.S. Nayak and Anr. , Kulwant Singh Gill v. State of Punjab 1991 Supp (1) SCC 504, Managing Director, ECIL, Hyderabad v. B. Karunakar , Gujarat Electricity Board and Anr. v. Atmaram Sungomal Poshani , and U.P. State Road Transport Corporation and Ors. v. A.K. Parul .
12. In the counter affidavit, it has been contended that the petitioner was transferred by the Headquarter, Chief Engineer, Western Command, Chandimandir, in terms of the extant policy decision, but the petitioner, however, deliberately avoided reporting for duty at Suratgarh where his services were required urgently.
He even refused to receive a copy of the movement order, therefore, the same was sent to him by registered post at his residential address on 23.09.1985, which was returned unanswered with the remarks that the addressee was not available despite repeated calls. However on 24.09.1985, he during a personal interview with the Chief Engineer was served with a copy of the said order. But even thereafter he did not report for duty. Concealing the said fact he obtained an order of stay in C.W.P. No. 2525 of 1985.
It appears that when the said fact was brought to the notice of the Division Bench of this Court, it was directed to commence prosecution against the petitioner for offences committed under Sections 191, 192 and 193 of the Indian Penal Code and further directed him to furnish a personal bond for a sum of Rs. 5,000/-. Despite vacation of the order of stay by this Court and consequent upon the transfer of the matter from this Court to the Tribunal, the petitioner did not report for duty.
13. We may also notice that during the pendency of the departmental proceedings, the petitioner filed an application for voluntary retirement.
14. According to the respondents, during the disciplinary proceedings, which had been brought on records, although he had come to Suratgarh, he did not join his duty nor submitted his arrival/joining report to the concerned authority. It is stated that the purported joining report submitted by him before the Inquiry Officer was a planned and fabricated document. It has been contended that the petitioner acted in a manner, which would attract the wrath of Rule 3 of CCS Conduct Rules and as he absented from duty without permission from 01.10.1985 to 24.04.1987, a disciplinary proceedings was directed to be held against him.
15. The respondents have contended that the petitioner had been adopting dilatory tactics to still the disciplinary
proceedings and had all along been avoiding the receipt of charge-sheet, as a result whereof the same had to be published in the newspapers. He although initially attended the proceedings of the said enquiry, but after June, 1987 stopped attending the same abruptly, which clearly establishes that he had no intention to take part in the disciplinary proceedings. In that view of the matter, the ex-parte enquiry was held.
16. It has been contended that the learned Tribunal has rightly not interfered with the quantum of punishment. As regard the petitioner’s application for voluntary retirement, it was held that he served a notice as PBSO and not as Supervisor B/S Grade I, which post he had been occupying at the relevant point of time, the same was not valid. Furthermore, his application which was addressed to the Secretary, Ministry of defense, New Delhi was not in terms of the prescribed procedure, as the said application was required to be made to the appointing authority, who at the relevant point of time was Headquarter, Chief Engineer, Western Command, Chandimandir. When the application reached in the hands of the competent authority, he was advised to file an appropriate application to the competent authority in the light of the policy instructions contained in letter dated 07.01.1985, but he did not file any such application.
It is contended that the post of PBSO Grade ‘A’ is three steps higher than the post of Supervisor B/S Grade I as
such the question of acceptance of voluntary retirement from that post did not have arise.
It has also been averred that even the Tribunal had categorically held that the petitioner had not adduced any documentary evidence to substantiate as a part of that, he had been appointed as PESO at the time of serving the said notice. It has been pointed out that although he had contended that he stood relieved having regard to his application for voluntary retirement but he himself in terms of Rule 48A of the CCS Pension Rules, made applications to the competent authority for grant of Earned Leave for the period 27.12.1993 to 25.1.1994 and again from 26.01.1994 to 05.03.1994.
17. So far as the question as to whether the petitioner was served with the charge-sheet and whether the departmental proceedings could be held ex-parte against him is concerned, as noticed hereinabove the same had been considered by the learned Tribunal in two different Original Applications. The learned Tribunal in their Orders had categorically held that the ex-parte domestic enquiry held against the petitioner was legal and valid. The petitioner has not questioned the said Orders in this writ petition. The said Orders have attained finality and thus in this writ petition, the said question cannot be permitted to be reopened.
18. We may observe that the Full Bench of the Tribunal, in our opinion, committed a serious error in entering in to the question of validity or legality of the domestic enquiry. The Order dated 09.06.1989 passed in the Original Application No. 214 of 1988 attained finality. The said Order was required to be read in its entirety and there cannot be any doubt whatsoever that while upholding the legality or validity of the ex-parte enquiry held against the petitioner, the Tribunal failed that having regard to the facts enumerated therein, the petitioner should be given an opportunity to prefer an appeal wherein the question of quantum of punishment only can be considered afresh.
The Full Bench of the Tribunal also allowed the said Original Application in part and remitted the matter back to the appellate authority for consideration thereof afresh. It, as noticed hereinbefore, had merely set aside the Order of the Appellate Authority and had never set aside the Order of the disciplinary authority.
19. In the aforementioned situation, we are of the opinion that it is too late in the day for the petitioner now to contend that neither any charge-sheet was served on him nor the order of the disciplinary authority stood vitiated by reason of non-compliance of the mandatory provisions of the said Rules and / or that the said enquiry was merely a fact-finding one and not a disciplinary enquiry. Such contentions, in our opinion, are barred under the principles of res judicata / constructive res judicata.
20. Moreover, the submission of the petitioner to the effect that, the order of the appellate authority imposing a punishment of compulsory retirement is without jurisdiction, is merely stated to be rejected. The order of the disciplinary authority had not been set aside. The appellate authority had not exercised its original jurisdiction.
It is one thing to say that an appellate authority having regard to the statutory rules specifying different authorities could not have usurped the jurisdiction of the disciplinary authority, but it is another thing to urge that the appellate authority has no jurisdiction to modify the order of punishment issued by the Disciplinary Authority.
Such a question even should not be allowed to be urged at all having regard to the fact that the Division Bench of the Tribunal in O.A. No. 214 of 1988 as also the Full Bench of the Tribunal in O.A. No. 2044 of 1990 remitted the matter back to the appellate authority only for the purpose of consideration as to whether the quantum of punishment imposed upon the petitioner was in commensurate with the misconduct committed by him or not. The petitioner relying on the decision of the Apex Court in R.S. Nayak’s case (Supra) has urged that the Court can rectify its own mistake. The maxim “actus curiae neminem gravabit”, which has been referred to by the Apex Court in the said case, cannot be said to have any application whatsoever in the instant case. It cannot be said as was held in the fact situation obtaining therein that the Tribunal acted wholly
without jurisdiction. The Tribunal’s jurisdiction was taken recourse to by the petitioner himself. He not only invited the Tribunal to go into the said questions, but in fact such questions were required to be posed and answered by the Tribunal.
21. Even assuming that the Tribunal had committed an error, such an error could have been corrected only by the higher authority. As indicated hereinbefore, the petitioner did not question the said Orders and must be held to have accepted the said findings. In fact, the petitioner in obedience to the directions issued by the Division Bench of the Tribunal in O.A. No. 214 of 1988 and by the Full Bench of the Tribunal in O.A. No. 2044 of 1990 submitted himself to the jurisdiction of the appellate authority first by preferring an appeal and thereafter participating in the proceedings before the appellate authority wherefor he had also sought for an opportunity of personal hearing, which was granted and thus, he now cannot be permitted to turn round and contend that the order of the appellate authority was without jurisdiction.
22. The appellate authority was beset with only one question as to whether the punishment imposed upon the petitioner was wholly disproportionate to the charges of misconduct levelled against him as has rightly been found by the learned Tribunal in its impugned judgment, having regard to the facts and circumstances of this case.
Having regard to the reasons assigned by the appellate authority, in our opinion jurisdiction of the judicial review can not be invoked.
The jurisdiction of the Tribunal/Court in this behalf is very limited. When exercising the power of secondary judicial review by invoking the doctrine of proportionality, the court can only interfere if it comes to the conclusion that the impugned order suffers from the vice of Wednesbury Unreasonableness attracting the wrath of Article 14 of the Constitution of India.
23. In Union of India and Anr. v. G. Ganayutham , , the Apex Court held :-
“34. In such a situation, unless the court / tribunal opines in its secondary role, that the administrator was, on the material before him, irrational according to Wednesbury (1948), 1 KB 223 : (1947) 2 All ER 680 or CCSU (1985) AC 374 : (1984) 3 All ER 935 norms, the punishment cannot be quashed. Even then, the matter has to be remitted back to the appropriate authority for reconsideration. It is only in very rare cases as pointed out in B.C. Chaturvedi case that the Court might – to shorten litigation – think of substituting its own view as to the quantum of punishment in the place of the punishment awarded by the competent authority. (In B.C. Chaturvedi and other cases referred to therein it has however been made clear that the power of this Court under Article 136 is different.) For the reasons given above, the case cited for the respondent, namely, State of Maharashtra v. M.H. Mazumdar cannot be of any help.”
24. In U.P. State Road Transport Corporation and Ors. v. A.K. Parul , the Apex Court held :-
“3… … … The interference with the punishment on the facts of this case cannot be sustained. In State bank of India v. Samarendra Kishore Endow this Court held that imposition of proper punishment is within the discretion and judgment of the Disciplinary Authority. It may be open to the appellate authority to interfere with it, but not to the High Court or to the Administrative Tribunal for the reasons that the jurisdiction of the Tribunal is similar to the powers of the High Court under Article 226… … … … …”
25. So far as question of quantum of punishment is concerned recently in Om Kumar and Ors. v. Union of India (2001) 2 SCC 386, it was held :-
“69. The principles explained in the last preceding paragraph in respect of Article 14 are now to be applied here where the question of “arbitrariness” of the order of punishment is questioned under Article 14.
70. In this context, we shall only refer to these cases. In Ranjit Thakur v. Union of India this Court referred to “proportionality” in the quantum of punishment but the Court observed that the punishment was “shockingly” disproportionate to the misconduct proved. In B.C. Chaturvedi v. Union of India this Court stated that the court will not interfere unless the punishment awarded was one which shocked the conscience of the court. Even then, the court would remit the matter back to the authority and would not normally substitute one punishment for the other. However, in rare situations, the court could award an alternative penalty. It was also so stated in Union of India v. Ganayutham .
71. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment
in disciplinary cases is questioned as “arbitrary” under Article 14, the court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The court while reviewing punishment and if, it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts, and such extreme or rare cases can the court substitute its own view as to the quantum of punishment.”
The aforesaid decision has been followed in Commandant, IV Battalion, APSP Mamnoor Lines, Warangal and Anr. v. Jabbar Hussain and Anr. 2001 (3) ALT 552.
26. For the reasons aforementioned, we do not find any merit in this writ petition, which is accordingly dismissed. However, in the facts and circumstances of the case, there shall be no orders as to costs.