HIGH COURT OF JUDICATURE CHHATTISGARH: BILASPUR
(Division Bench)
WRIT PETITION NO. 1094 OF 2000
Union of India & Others
...Petitioner
Versus
The Central Administrative Tribunal, Jabalpur & Another
...Respondent
! Present : Mr. Vinay Harit, Sr. Advocate with Mr. Ashok
Swarnkar, learned counsel for the petitioner.
^ Mr. U.N.S. Deo, with Mr. Pankaj Shrivatava, learned counsel for
respondent No.2.
CORAM : Hon'ble Shri A.K. Patnaik, CJ
& Hon'ble Shri S.K.Agnihotri, J.
Dated: 16/06/2005
: O R D E R
( 16th of June 2005)
The following Order of the Court was
passed by
A.K. Patnaik, CJ:
In this writ petition under Articles 226/227 of
the Constitution of India, the petitioners have
challenged the order dated 22.09.1999 passed by the
Central Administrative Tribunal, Jabalpur Bench,
Jabalpur in Original Application No.456 of 1991.
2. The facts briefly are that the respondent No.2 was
working as a Permanent Way Inspector under the South
Eastern Railways. A departmental enquiry was initiated
against the respondent No.2. In the said departmental
enquiry two articles of charge were framed against
respondent No.2. The two articles of charge are as
follows:
“Article-I: That the said Sri B.P.Singh
while functioning as PWI/MBY during 1986 had
accepted 989 pcs. Of B.G. Sal wooden
sleepers / special from the associates of
M/s. M.P. M.P. Export Corp. Ltd. without
Booking Instructions of Dy.CE/SLC/GRC or any
instruction from his superior officers.
By the above act Sri Singh failed to
main absolute integrity, devotion to duty
and acted in a manner which is unbecoming of
a Rly. servant and there by violated rule
3(i), (ii) & (iii) of the RSC Rules, 1966.
Article-II: That during the aforesaid period
and while functioning in the aforesaid
office, the said Sri B.P. Singh has granted
12/EG-15 (Acknowledgment) for the aforesaid
989 Pcs. Of B.G. Sal wooden sleepers /
specials quoting 6 BIs meant for other
consignees and one for PWI/BMY. On the
strength of those 13 EG-15, the Contractor
has claimed bill of Rs.10,09,305.20P to Dy.
CE/SLC/GRC. He granted 13 Nos. clear EG-15
for 989 pcs. Of sleepers / specials quoting
6 fake B.I. Nos. meant for some other units.
The B.I. No.303 was meant for PWI/BMY and
the sleepers were passed at Depot No.371 of
Pendra Road, but Sri Sngh received the
materials from other depots of Dhamtari &
Raipur. Thus, Sri Singh has failed to main
absolute integrity, devotion to duty and
acted in a manner which is unbecoming of a
Rly. Servant as required under rule
3(I)(i),(ii) & (iii) of the RSC Rules,
1966.”
In the enquiry, the Enquiry Officer given a finding in
the enquiry report that the two articles of charge were
proved against respondent No.2. The enquiry report was
accepted by the Disciplinary Authority and the
respondent No.2 was removed from service vide order
dated 25.10.1989 by the disciplinary authority with the
observation that he was a person of doubtful integrity
and was not a fit person to be retained in service.
Aggrieved by the said order of removal, the respondent
No.2 preferred an appeal before the appellate
authority. But before the appeal was decided,
respondent No.2 filed Original Application No.456 of
1999 before the Central Administrative Tribunal,
Jabalpur Bench, Jabalpur. The Tribunal after hearing
the parties disposed of the Original Application by
modifying the order of removal to an order of
compulsory retirement with effect from the date from
which the respondent No.2 was removed from service.
Paragraphs 5 & 6 of the order dated 22.09.1999 of the
Tribunal in the said O.A.No.456 of 1991 which contain
the reason for modifying the order of removal to one of
the compulsory retirement are quoted herein below:
“5. We have duly considered the submission
of both sides and minutely peruse the
records. It is true that the applicant was
posted as Permanent Way Inspector in
Bhilliai Marshalling Yard where he had to
see to the maintenance of Railway tracks.
The applicant was required materials /
stocks which were necessary for the
maintenance. The said materials were
supplied to the Railways by the M.P. Export
Corporation Limited, Bhopal. It is alleged
that during the period 1986-87, the
applicant had received materials / stock,
which on check was found to be short. The
respondents in their reply themselves admit
that the responsibility was not that of the
applicant who was the P.W.I. but the Senior
D.E.N, D.E.N. and the A.E.N. were equally
responsible and they were aware of the
problems of the Bhillai Marshalling Yard.
If it be so, the materials supplied to the
Railways ought to have been checked by the
superior officers / authorities as well
because the bills are to be ultimately
passed through them. No doubt the
misappropriation of materials might have
been due to lack of devotion of duty on the
part of the applicant as alleged, however,
the fact remains that there was negligence
on the part of the superior officers like
the Sr. DEN and AEN who were not taken to
task by the respondent – department for the
reasons best known to them. Only the
applicant was circled out and held
responsible for the government loss.
6. In view of what has been discussed
above and after hearing the counsel for both
parties and having perused the records on
file, we find that the applicant was not the
sole person whose negligence attributed to
the acceptance of sub standard material but
some senior officers were also responsible
and they were spared for the reasons best
known to the official respondents. We also
find that for shortage of 251 sleepers,
utilized in track repairs, four junior PWIs
who were also responsible for accounting &
transaction were also spared by the
official. In the circumstances, the
punishment imposed upon the applicant is
considered too harsh and we are of the
opinion that the same should be modified.
In this connection we also rely on the
decision of the Hon’ble Supreme Court in the
case of B.C. Chaturvedi vs. Union of India,
(1995) 6 SCC 749. We accordingly dispose of
this application and modify the impugned
punishment of removal from service to that
of compulsory retirement w.e.f. the date
from which he was removed from service. The
respondents shall take all necessary
measures as required under the Rules for
making payment of pensionary benefits to the
applicant to which he will be entitled to
within six months from today.”
3. Mr. Vinay Harit, Sr. Advocate appearing for the
petitioners submitted that the two charges against the
respondent No.2 were serious in nature and had been
proved in the departmental enquiry. He vehemently
argued that since it has been established in the
departmental enquiry that the respondent No.2 had
failed to maintain absolute integrity in the discharge
of his duty and has also misappropriate 251 numbers of
New Wooden Crossings Sleepers and thereby put the
Railway in heavy financial loss, the order of removal
passed by the disciplinary authority was proportionate
to the gravity of misconduct and should not have been
interfered with by the Tribunal in the impugned order.
He submitted that the Supreme Court has held in B.C.
Chaturvedi vs. Union of India & Others reported in
(1995) 6 SCC 749 that is only when the Tribunal finds
that the punishment imposed by the disciplinary
authority is shocking, it will interfere with the
punishment and remit the matter back to the
disciplinary authority or the appellate authority to
reconsider the punishment to be imposed on the
delinquent and only in exceptional rare cases the
Tribunal can impose lesser punishment. He also relied
on the decisions of the Supreme Court in Union of India
& Another vs. G. Ganayutham reported in AIR 1997 SC
3387 as well as Canara Bank vs. V.K. Awasthy reported
in 2005 AIR SCW 2005 for the proposition that the
Tribunal will not interfere with the order of
punishment unless the same is wholly irrational or
illegal. He further submitted that in this case, the
Tribunal while reducing the punishment from one of
removal to compulsory retirement has recorded some
findings of negligence against some superior officers
namely Sr. D.E.N., D.E.N. and A.E.N., and these
findings are not based on any material in the records
of the departmental enquiry.
5. Mr. U.N.S. Deo, learned counsel appearing for
respondent No.2, on the other hand, submitted that the
contention of the petitioners before the Tribunal inter
alia was that the respondent No.2 was posted as
Permanent Way Inspector in Bhillai Marshalling Yard
where he was to see the maintenance of railway tracks.
But he was not the sole person who was responsible for
the loss of materials / stocks in the railway yard and
the Sr. D.E.N., D.E.N. and A.E.N. were equally
responsible and yet respondent No.2 was singled out for
the differential treatment and proceeded against the
departmental enquiry and finally removed from the
service. He further submitted that the Tribunal was
therefore right in coming to the conclusion that the
respondent No.2 was not the sole person responsible for
accepting substandard materials or for the shortage of
251 sleepers and in reducing the punishment from one of
removal from service to one of compulsory retirement.
He also relied on the aforesaid decision of Supreme
Court in B.C. Chaturvedi (supra) wherein it has been
held that if the punishment imposed by the disciplinary
authority shocks the judicial conscience of the
Tribunal, the Tribunal can interfere with the same and
in some cases can also reduce the punishment to shorten
the litigation. He also relied on the decision of the
Supreme Court in Kailash Nath Gupta vs. Enquiry Officer
(R.K. Rai), Allahabad Bank & Others reported in (2003)
9 SCC 480 wherein it has been held that the relevant
factors are not taken note of while determining the
quantum of punishment, the Court can direct
reconsideration or in an appropriate case for shorten
the litigation indicate the punishment to be awarded.
He also cited the decision of Supreme Court in Pritam
Singh vs. Union of India & Others reported in 2004 AIR
SCW 5391, wherein the Supreme Court interfered with the
order of punishment of compulsory retirement as the
railway employee had put in 31 years of long service
without any blemish. He submitted that in the present
case, the respondent No.2 had put in 29 years of
unblemished service and he should not have been removed
from service and therefore, the order of the Tribunal
reducing the punishment of removal to one of compulsory
retirement was justified. Finally, he submitted that
before the Tribunal, respondent No.2 had raised various
other grounds such as; violation of principles of
natural justice; and procedural irregularities in the
enquiry, but all these grounds have not been taken note
of by the Tribunal in the impugned order. To a query
made by the Court as to why the respondent No.2 has not
challenged the order of the Tribunal, Mr. Deo, learned
counsel appearing for respondent No.2 submitted that
since the Tribunal by the impugned order reduced the
punishment from one of removal to one of compulsory
retirement and the respondent No.2 on such compulsory
retirement would be entitled to his pension, the
respondent No.2 did not challenge the order of the
Tribunal.
6. The law in what cases, the Tribunal or the High
Court can interfere with the quantum of punishment
imposed on a delinquent by the disciplinary authority
is now fairly well settled in India.
7. In B.C. Chaturvedi (supra) the Supreme Court has
been held that the disciplinary authority or the
appellate authority, being the facts finding
authorities have exclusive power to consider the
evidence with a view to maintain discipline and they
are invested with the discretion to impose appropriate
punishment keeping in view the magnitude or gravity of
the misconduct. In the said decision, the Supreme
Court has however held that the High Court / Tribunal,
while exercising the power of judicial review, cannot
normally substitute their own conclusion on penalty and
impose some other penalty. But if the punishment
imposed by the disciplinary authority or the appellate
authority shocks to 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.
8. In Union of India & Another vs. G. Ganayutham
(supra) the Supreme Court considered the law with
regard to proportionality of punishment both in the
U.S. and in England as well as in India and finally
came to conclusion that the position in our country in
Administrative Law is that the Courts / Tribunals will
only play a secondary role while the primary judgment
as to resonableness will remain with the executive or
the administrative authority and the secondary judgment
of the Court is to be based Wednesbury and CCSU
principles to find if the executive or administrative
authority has reasonably arrived at his decision as the
primary authority. Para 31 of this judgment of the
Supreme Court, which is relevant is quoted herein
below:
“31. 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 or CCSU 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’s case (1995 AIR SCW 4374) that
the Court might, – to shorten litigation –
think of substituting it own view as to the
Quantum of punishment in the place of the
punishment awarded by the competent
authority.”
In the aforesaid judgment therefore, the Supreme Court
has taken a view that when the Court / Tribunal opines
in its secondary role, that the administrator was, on
the material before him, irrational according to
Wednesbury or CCSU norms. The punishment cannot be
quashed. But even then the matter has to be remitted
back to the disciplinary authority for reconsideration
and it is only in very rare cases as pointed out in
B.C. Chaturvedi’s case that the court might to shorten
the litigation substitute a lesser punishment than that
awarded by the disciplinary authority.
9. In Canara Bank vs. V.K. Awasthy (supra) the
Supreme Court has only summed up the position of law as
laid down in Union of India vs. G. Ganayutham (supra)
in para 27 of the judgment.
10. In Kailash Nath Gupta vs. Enquiry Officer (R.K.
Rai) Allahabad Bank & Others (supra) the Supreme Court
after discussing the law as laid down in B.C.
Chaturvedi (supra) and in other cases has held that one
thing is clear that the power of interference with the
quantum of punishment is extremely limited. But when
relevant factors are not taken note of, which have some
bearing on the quantum of punishment, certainly the
Court can direct reconsideration or in an appropriate
case to shorten the litigation, indicate the punishment
to be awarded. Thus, in this case also in which the
great reliance has been placed by Mr. Deo, learned
counsel appearing for respondent No.2, factors which
are relevant and have bearing to the quantum of
punishment, if ignored may call for interference with
the order of punishment by the Court or the Tribunal
and not otherwise.
11. Coming to the facts of the present case,
paragraphs 5 & 6 of the order of the Tribunal which
have been quoted above would show that the factors
which have been taken into consideration by the
Tribunal in interfering with the order of punishment of
removal passed by the disciplinary authority is that
besides respondents No.2, other superior officers like
Sr. D.E.N., D.E.N., A.E.N. and 4 APWI are also
responsible. But these findings that superior officers
like Sr. D.E.N., D.E.N., A.E.N. and 4 Junior PWIs were
also responsible along with respondent No.2, are not
based on any materials in the record collected in the
departmental enquiry. In exercise of the power of
judicial review the High Court or the Tribunal cannot
recall fresh finding of facts with regard to the
disciplinary proceedings which are not part of the
record of the disciplinary proceedings. The power of
the High Court / Tribunal is to only examine the order
passed by the disciplinary authority or the appellate
authority on the basis of materials which formed part
of the departmental enquiry. If in the given case, the
High Court or the Tribunal is of the view that certain
further facts need to be inquired into, the High Court
or the Tribunal can remit the matter back to the
disciplinary authority for re-enquiry on those facts
and in such re-enquiry only fresh materials can be
adduced and brought on record. While exercising the
power of judicial review the High Court or the Tribunal
cannot act as the disciplinary authority or the
appellate authority and record its own finding of facts
on the basis of materials placed before the High Court
or Tribunal. This has itself been clarified in the
case of B.C. Chaturvedi (supra) that the disciplinary
and on appeal the appellate authority, being fact
finding authorities have exclusive power to consider
the evidence with a view to maintain discipline. Even
otherwise, the fact that the other officers were also
responsible along with respondent No.2 in respect of
the two charges against respondent No.2 is not relevant
or germane to the quantum of punishment to be imposed
on respondent No.2. If the respondent No.2 was guilty
of the two charges he was liable for such punishment
should not be shocking to judicial conscience or
strikingly disproportionate. In the present case, the
respondent No.2 has been found guilty of the two
charges in the departmental enquiry and the findings in
the enquiry report have been accepted by the
disciplinary authority. The two charges quoted above
are certainly grave charges warranting severe
punishment. Unless the findings of the disciplinary
authority with regard to the guilt of respondent No.2
are disturbed by the appellate authority or the
Tribunal, we do not think that the Tribunal can
possibly reduce the quantum of punishment from one of
removal to that of compulsory retirement.
12. But as stated above, it has been submitted by Mr.
Deo, learned counsel appearing for respondent No.2 that
besides the challenge to the quantum of punishment, the
respondent No.2 had raised various other grounds
complaining of violation of principles of natural
justice and irregularities in the departmental enquiry.
We have also perused the records of the Tribunal which
have been produced before us and we find that in para 5
of the Original Application the respondent No.2 has
detailed various grounds including violation of D & A
Rules and the principles of natural justice. Since Mr.
Deo has submitted that the respondent No.2 did not
challenge the impugned order of the Tribunal as by
virtue of the Tribunal the respondent No.2 would have
been entitled to pension, we are of the view that the
matter should be remanded back to the Tribunal for a
fresh decision in accordance with law after hearing the
parties.
13. For the reasons stated above, we set aside the
impugned order dated 22.09.1999 of the Central
Administrative Tribunal, Jabalpur Bench, Jabalpur in
O.A.no.456 of 1991 and remit the matter back to the
Tribunal for fresh hearing and decision in accordance
with law. Since this is an old case, the Tribunal will
do well to complete the hearing and finally dispose of
the matter within four months from the date of receipt
of certified copy of this order.
Chief Justice Judge