Full Judgment
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR.JUSTICE V.G.ARUN FRIDAY, THE 01ST DAY OF NOVEMBER 2019 / 10TH KARTHIKA, 1941 OP (CAT).No.3151 OF 2012(Z) (AGAINST THE ORDER OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN OA NO.921/2010 DATED 13.07.2012) PETITIONER/S: 1 UNION OF INDIA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF FINANCE, NEW DELHI. 2 THE PRINCIPAL ACCOUNTANT GENERAL A&E, KERALA THIRUVANANTHAPURAM. 3 THE SR.DEPUTY ACCOUNTANT GENERAL (ADMINISTRATION) OFFICE OF THE PRINCIPAL AG (A & E), THIRUVANANTHAPURAM, KERA.A BY ADV. SRI.V.V.ASHOKAN,SC RESPONDENT/S: ANIL.S.,"RISHIKESH", VATTIYOORKAVU P.O., THIRUVANANTHAPURAM - 695 013. R1 BY ADV. SRI.ATHUL SHAJI R1 BY ADV. SRI.T.A.SHAJI SR. R1 BY ADV. P.K.VIJAYAMOHANAN THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 23-10-2019, ALONG WITH OP (CAT).3952/2012(Z), THE COURT ON 01-11-2019 DELIVERED THE FOLLOWING: OP(CAT) Nos.3151 and 3952-2012 ..2..
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN & THE HONOURABLE MR.JUSTICE V.G.ARUN FRIDAY, THE 01ST DAY OF NOVEMBER 2019 / 10TH KARTHIKA, OP (CAT).No.3952 OF 2012 AGAINST THE ORDER IN OA 921/2010 DATED 13.07.2012 OF CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH PETITIONER/S: ANIL.S, AGED 50 YEARS 'RISHIKESH', VATTIYOORKAVU P.O., THIRUVANANTHAPURAM-695 013, (UNDER ORDERS OF DISMISSAL FROM SERVICE FROM THE POST OF SENIOR ACCOUNTANT, OFFICE OF THE ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM). BY ADVS. SRI.T.A.SHAJI (SR.) SRI.ATHUL SHAJI RESPONDENT/S: 1 THE UNION OF INDIA REPRESENTED BY THE SECRETARY TO GOVERNMENT, MINISTRY OF FINANCE, NEW DELHI - 110001 2 THE ACCOUNTANT GENERAL A & E KERALA, THIRUVANANTHAPURAM-695 039. 3 THE SENIOR DE.PUTY ACCOUNTANT GENERAL (ADMN.) OFFICE OF THE ACCOUNTANT GENERAL (A & E), KERALA, THIRUVANANTHAPURAM-695 039. R1 BY SRI.P.PARAMESWARAN NAIR,ASG OF INDIA R1 BY ADV. SHRI.P.VIJAYAKUMAR, ASG OF INDIA R2-3 BY SRI.V.V.ASHOKAN,SC THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 23-10- 2019, ALONG WITH OP (CAT).3151/2012(Z), THE COURT ON 01-11-2019 DELIVERED THE FOLLOWING:
OP(CAT) Nos.3151 and 3952-2012 ..3..
JUDGMENT
VINOD CHANDRAN,J.
An unyielding Administration, still hesitant to shake off the lingering hang over of the bygone British Raj and a belligerent work force, unable to comprehend the principle of “non-violence”, on which was built the device of political and social struggle termed “Sathyagraha”, has contributed vastly to the development of the law of disciplinary action in this Country. The appeals before us by the Administration and a delinquent employee has its genesis in a 'dharna' and 'relay fast' organized by the employees' association, against the Administration, which as is wont to happen slipped into untoward incidents, on which
OP(CAT) Nos.3151 and 3952-2012 ..4..
charges of misconduct were leveled against many employees; the subject delinquent being eventually dismissed from service. Looking at the cause, we cannot but comment; a 'relay fast', is a mockery of the 'devastating tactic (a fast) in a land ravaged by cyclic famine'(sic-Freedom at Midnight), employed by the “Mahatma” to bring the Empire to its knees or rather to prompt them to take to their heels. It is a violence to the very concept, when those participating in these 'relay fasts'; who are privileged with a decent employment, subsequently ensconce themselves in their homes to gorge; in a still undernourished Country teeming with unemployed.
2. On facts here, we have an employee, who is alleged to have unauthorisedly entered into a Voucher Level OP(CAT) Nos.3151 and 3952-2012 ..5..
Computer (VLC) room situated in the second floor of the rear building in the Accountant General's office and attempted to vandalize and remove a surveillance camera fitted on its walls, proceeded against departmentally. Inter alia the presence of the employee beyond office hours, is alleged to be a misconduct being against the provisions of the Manual of General Procedure ('Manual'; hereafter), which prohibits any member of the staff to remain in the office premises after 7.30 p.m., without specific permission. The presence is admitted, but justified due to the 'dharna' and 'relay fast' carried on by the employee's association in which very many staff participated. The delinquent vehemently refutes the allegation of having entered the office building or attempting to vandalize
OP(CAT) Nos.3151 and 3952-2012 ..6..
or remove the surveillance camera. The employee asserts that the action against him is the continuation of victimization unleashed on the striking employees, by the Administration. The Administration, on the other hand, holds aloft the flag of discipline and accuses the employees of having overstepped the limits of a peaceful agitation; an oxymoron on its terms.
3. Learned Senior Counsel, Sri.
T.A.Shaji appearing for the delinquent employee, argues that the charges themselves are vague and none of the allegations stood proved. The charges were on the basis of the provisions in a Manual, which cannot lead to a disciplinary proceeding or imposition of the major penalty of dismissal, as was done in this case. The learned Senior Counsel would take us through
OP(CAT) Nos.3151 and 3952-2012 ..7..
the order of the Inquiry Officer (IO) as also the Disciplinary Authority to allege that the findings smack of pre-judgment and an uncalled for enthusiasm to find the delinquent guilty of the charges alleged. The findings are not supported by evidence and in the context of irrelevant material having been relied on, the entire process is vitiated. It is pointed out that the major penalty of dismissal imposed on the delinquent, deprives him of his livelihood; when neither the charges leveled or the evidence adduced can be said to have proved the allegations or be adequate to impose such a major penalty. The delinquent was a person of unblemished service of 22 years and he was one of the scapegoats, targeted for dismissal, as a part of the reactionary measures against the employees enmasse.
OP(CAT) Nos.3151 and 3952-2012 ..8..
4. It is contended that one other
dismissal was interfered with by this Court and a lesser punishment imposed as is evident from the reported judgment in Union of India and others v. Manuel K.A. [ILR 2018
(2) Kerala 385]. The delinquent urge the
requirement of a reasoned report of inquiry and strict compliance with the principles of natural justice, especially when the action leads to deprivation of livelihood, thus additionally casting a stigma on the employee. Reliance is placed on Anil Kumar v. Presiding Officer and Others [(1985)3 SCC 378]. On the context of the grounds of vagueness of charges and evidence being perfunctory, the decision in Sawai Singh v. State of Rajasthan [(1986) 3 SCC 454] is placed before us. Referring to the various surmises and conjectures made by the I.O and
OP(CAT) Nos.3151 and 3952-2012 ..9..
the leading questions put to the witnesses in chief examination, as also the power of the Court to look into the evidence; if there is (i) any violation of statutory requirement or guidelines issued by the Administration to regulate such proceedings or (ii) violation of principles of natural justice or fair procedure, Moni Shankar v. Union of India and Another [(2008) 3 SCC 484] is relied on. Roop Singh Negi v. Punjab National Bank and Others [(2009) 2 SCC 570] is also put forth to contend that if the inquiry report is based on conjectures and surmises, it cannot be sustained.
5. Learned Standing Counsel for the Administration, Sri.Mayankutty, would on a reference to the Memorandum of Charges point out that the allegations do not lack in OP(CAT) Nos.3151 and 3952-2012 ..10..
clarity, nor are the charges based merely on the Manual. The charges are framed on the basis of the Central Civil Services (Conduct) Rules, 1964 (herein after referred to as the Rules of 1964), specifically sub- clauses (2) and (5) of Government of India's decision No.23, under Rule 3. There is absolutely no contention of violation of principles of natural justice or that a fair procedure was not adopted by the I.O. Every opportunity to peruse the documents, cross- examine the witnesses and adduce evidence in defense was afforded to the delinquent. The delinquent was also allowed to have the assistance of another employee. At no time, there was any allegation raised of bias before the I.O, or even before the Tribunal and there was sufficient opportunity for hearing afforded to the delinquent. The I.O
OP(CAT) Nos.3151 and 3952-2012 ..11.. had in his report considered the entire evidence adduced by the Administration and the delinquent and found the charges to be proved.
6. The Disciplinary Authority also
has looked into the inquiry report, the evidence adduced by both sides and the arguments put forth, before finding the delinquent guilty of the misconducts alleged. The proceedings for major penalty was necessitated since the allegation was one of vandalism of public property. It is admitted that no serious damage was caused to the surveillance camera as is evident from the deposition of the witnesses. But this was averted only because of the timely intervention of a Peon, who had incidentally been deputed at that time to supervise the installation of the cameras. It is also
OP(CAT) Nos.3151 and 3952-2012 ..12.. pointed out that the installation of cameras in the work place was one of the aspects, which irked the employees' association. The attempt of the petitioner to destroy and remove the same was a concerted attempt, aimed against the Administration's decision.
7. It is pointed out that one of the
charges alleged is lack of faithfulness to the institution, which deprives any right to the delinquent to be continued in employment after the employer arrives at such a satisfaction, validly on the basis of the evidence adduced. Reliance is placed on the decisions in Karnataka Power Transmission Corporation Limited v. C.Nagaraju [[2019] 0 Supreme(SC) 1022] and Union of India v. Parma Nanda [(1989) 2 SCC 177] to caution this Court from causing any interference to the proceedings taken or the punishment
OP(CAT) Nos.3151 and 3952-2012 ..13.. imposed. It is also pointed out that the Division Bench decision cited by the delinquent employee is challenged by the Administration in SLP(Civil) No.21414 of 2018, in which the Hon'ble Supreme Court has granted a stay.
8. The allegations as seen from Annexure-A1, the charge memorandum produced before the Tribunal, are:
(i) presence in the office premises beyond duty hours.
(ii) deliberate unauthorised entry into the VLC room; and
(iii) act of vandalizing the surveillance camera fitted on the wall of VLC room and attempting to remove it.
9. The above said acts are alleged to have violated the provisions of paragraph OP(CAT) Nos.3151 and 3952-2012 ..14..
2.2(2) of Manual and Rule 3(1)(iii) of the Rules of 1964, with specific reference to sub-clauses 2 and 5 of GoI's decision No.23. Paragraph 2.2 (2) of the Manual refers to closing of office, which is to be carried out by 7.30 p.m., after which none are allowed to work or play any indoor or outdoor games within the office premises. We do not find any prohibition, insofar as a mere presence within the office premises after 7.30 p.m., which could be for sufficient and valid reasons. We do not think that the mere presence of an individual in the office premises could lead to any allegation of misconduct, without something more, which we prima facie notice, is available in the present case. In any event, we do not think that there could be any allegation of misconduct with respect to
OP(CAT) Nos.3151 and 3952-2012 ..15..
the presence of the delinquent within the office premises, especially when admittedly there was some agitation carried on by the Association within the office premises itself. However, one has to examine the issue of the unauthorised entry alleged into the VLC room and the allegation of vandalism, coupled with attempt to remove the surveillance camera.
10. The Tribunal found that the
attempt of the delinquent to remove the surveillance camera fitted on the wall is certainly inconsistent or incompatible with the due and peaceful discharge of duties, but however, would not be grave enough to raise a suspicion on the delinquent's faithfulness, in the mind of the employer, for ever. The Tribunal also looked at the unblemished service of more than 22 years of
OP(CAT) Nos.3151 and 3952-2012 ..16..
the delinquent and found the penalty of dismissal imposed on the applicant to be shockingly disproportionate to the gravity of the offence committed by him. The applicant having been deprived of his livelihood by the harshest major penalty that could be imposed, found to be not justified in the totality of the facts and circumstances, it was held that the applicant should be given a chance to reform himself. Following Praveen Bhatia v. Union of India and Others [(2009) 4 SCC 225], the Tribunal remitted the case to the Appellate Authority.
11. The Disciplinary Authority
though made observations on the admission made by the delinquent, as also the procedure followed in the inquiry, has more or less relied upon the findings of the I.O. OP(CAT) Nos.3151 and 3952-2012 ..17..
We looked at the order of the I.O also, in which we find certain surmises and conjectures having been made, which according to us are irrelevant for the consideration of the specific allegations raised herein and are also extraneous to the fact; which we will deal with a little later. The I.O had in the course of the proceedings also inspected the VLC room along with the Presenting Officer (PO) and the Defence Assistant (DA) to examine whether the factual allegations are possible of having been carried out in the manner stated. Three witnesses were examined on the part of the prosecution, PW1 being the Assistant Caretaker, PW2 a Peon attached to the AG's Secretariat and PW3 a Technician involved in installation of the cameras. The defence too examined three witness; two
OP(CAT) Nos.3151 and 3952-2012 ..18.. colleagues of the delinquent and the delinquent himself. On the basis of the allegations raised by the learned Senior Counsel, we also looked at the evidence.
12. Looking at the evidence, we will
go by the sequence of events as deposed by the prosecution witnesses. PWs 1, 2 and 3, are respectively the Assistant Care Taker, the eye-witness Peon and the Technician installing the cameras. The said witnesses, in tandem deposed that on that particular day, since the installation of surveillance cameras were going on, the offices were not closed at 7.30 p.m. The Assistant Care Taker was enjoined to close the office rooms and PW2 was the person entrusted to supervise the work of installation and assist the Technicians.
OP(CAT) Nos.3151 and 3952-2012 ..19..
13. As deposed by PW's 2 and 3, they
were proceeding through the corridor near the VLC room along with two other Technicians, when PW2 saw the delinquent standing upon the window sill, inside the room, attempting to meddle with the surveillance camera fitted on its wall. The corridor and the VLC room had glass shutters at the entrance. It is also clear from the deposition that when PW2 entered the room, on seeing him, the petitioner along with one other person, who was also in the room, rushed out. The other person on seeing PW2 put a helmet on his head and hence PW2 could not identify him. The Technician; PW3 who was walking 5 to 6 meters behind PW2 deposed that he saw the two persons rushing out of the room and when he entered the room he saw the camera hanging down from its setting.
OP(CAT) Nos.3151 and 3952-2012 ..20.. PW3 also corroborated the version of PW2 that the second person had put on a helmet while coming out of the room.
14. PW's 2 and 3 stated that
immediately thereafter, PW2 went to the entrance of the office premises and apprised PW1 about what happened inside the VLC room. The person wearing the helmet is said to have rode away in a motor bike; which is stated by PW3 also. The delinquent then picked up a quarrel with the Peon on the ground that the accusation made by the Peon about the delinquent having meddled with the camera is false. The registration number of the bike was noticed and PW2 passed it on to the Police. This information revealed that it belonged to a police constable; who was with the delinquent and was the person who rushed out of the VLC room with the helmet.
OP(CAT) Nos.3151 and 3952-2012 ..21..
15. We would pause here to say that
the credibility of the Assistant Care Taker or the Technician has not been doubted by the delinquent. Even in cross-examination, they were not accosted with any question as to their versions being false. With respect to PW2, there was an allegation raised that he had been instigated by the Administration to make the complaint. We cannot countenance this allegation, since the delinquent and the other defence witnesses also admit to PW2 having informed PW1 immediately on the spot, after detecting the alleged incident, in which the delinquent is said to have been involved. They also admit to the altercation between the delinquent and PW2 in front of PW1, the Assistant Care Taker. PW1 also deposed that on his verifying the VLC room, he found the camera to be separated from its
OP(CAT) Nos.3151 and 3952-2012 ..22.. setting.
16. The delinquent employee deposed
that while he was standing on the southern side of the Association hall at about 8.30 p.m., he saw PW2 along with two other people going into the office building. It is highly improbable that the Peon along with the Technicians just walked into the building to come back to make a complaint, specifically of the delinquent having attempted to remove the surveillance camera from the VLC room. The circumstances lend credence to the version of the prosecution witnesses, that the incident occurred as has been stated by PW2. The immediate corroboration of PWs 1 and 3 also indicates the possibility of the incident having occurred, as deposed by PW2.
17. The learned Senior Counsel challenged the order of the I.O and the OP(CAT) Nos.3151 and 3952-2012 ..23..
Disciplinary Authority, as based on surmises and conjectures and having relied upon irrelevant considerations. Having gone through the orders, we do not agree with such a contention. There has been some references, which are irrelevant, which have not weighed with the Disciplinary Authority in entering into the finding of guilt. There was an objection raised on PW2's complaint having not been written by him. PW2 admits to the same and expresses his lack of sufficient education as a reason for having got it written by another. He, however, accepts every word in the complaint and also his signature. The fact that he did not divulge the scribe is not a very relevant factor. In this context, the I.O has found that the delinquent also had made a representation, which was written by the
OP(CAT) Nos.3151 and 3952-2012 ..24.. D.A, but signed by him. That, would have no bearing in deciding as to whether the complaint of PW2 could have been accepted or not.
18. Yet again a discrepancy was
asserted, insofar as the complaint filed before the Police, being different on terms and facts. The learned Senior Counsel also stressed upon such discrepancy, specifically referring to the two documents. The cross-examination of PW2 indicates that when the same was pointed out he had specifically stated that what has been recorded by the Police, is not his exact version. He asserts that the Police have made some changes to his statement and also cites a reason for that. The person who rushed out of the room wearing a helmet, along with the delinquent, as already noticed was a
OP(CAT) Nos.3151 and 3952-2012 ..25.. Policeman. It is the specific case of PW2 that at the Police Station somebody had requested him to withdraw from the complaint. The discrepancy according to us is not at all material in the disciplinary proceeding. It is also clear that in fact the criminal case was registered against the delinquent and a police man.
19. The defence witnesses also
admitted to the presence of the delinquent, the Peon and the Technicians in the office premises. The version attempted to be projected by them is that the delinquent employee was always in the company of one or other of them and there could not have been an allegation as has been raised against the delinquent. The I.O again has found that since DW1 stated that he had never a difference of opinion with the Association
OP(CAT) Nos.3151 and 3952-2012 ..26..
and he was a witness in another disciplinary action, he would have no qualms in deliberately stating a falsehood for protecting the delinquent, who is also an Association member. We do not agree with the I.O on that count, but that alone cannot be a reason to interfere with the findings of the I.O, that the defence version is not a credible one. We have to first notice that both DW's 1 and 2 are in a manner, interested witnesses; being colleagues of the delinquent and also fellow travelers in the Association and the agitation carried out. What is relevant is that the version of the prosecution witnesses is quite in consonance with the complaint laid by PW2 and the attendant circumstances as deposed by them also are to a large extent admitted by the defence too. The question is only as
OP(CAT) Nos.3151 and 3952-2012 ..27..
to whether the alleged incident of attempting to remove the surveillance camera occurred or not. Considering the totality of the circumstances, we are inclined to accept the version of the prosecution witnesses and find the allegations to have been proved in the inquiry. The defence witnesses have not been successful in dispelling the very strong probability of the incident having occurred as alleged by the Administration.
20. Anil kumar (supra) considered an
inquiry report, which merely set out the charges, the dates on which the inquiry was held, followed with the names of the witnesses examined and a statement that evidence of the appellant and witnesses were recorded. By a cryptic sentence, guilt was found, based on which report, the Disciplinary Authority imposed punishment of
OP(CAT) Nos.3151 and 3952-2012 ..28.. dismissal from service. It was held by the Hon'ble Supreme Court that being a quasi-
judicial inquiry, it has to be held
according to the principles of natural justice and the I.O should act judicially applying his mind to the evidence, assigning reasons for the findings and not merely recording his ipse dixit. It was observed that a dismissal from service affects the livelihood and casts a stigma on the employee and in such circumstances, the courts may enter into the adequacy or sufficiency of evidence. We have in the present case followed the dictum of the Hon'ble Supreme Court and examined the evidence to find it to be sufficient and adequate to prove the allegations raised.
21. In Sawai Singh (supra), it was found that the charges were vague and were OP(CAT) Nos.3151 and 3952-2012 ..29..
difficult to be met by any accused and that the evidence adduced was perfunctory, failing to bring home the guilt of the accused. The Hon'ble Supreme Court also noticed Surath Chandra Chakrabarty v. State of West Bengal [(1970) 3 SCC 548], wherein it was held that the charges involving consequences of termination of service must be specific, though a departmental inquiry is not akin to a criminal trial. State of A.P v. S.Sree Rama Rao [(1964) 3 SCR 25] was also noticed, wherein it was held that there is no rule that, in a departmental inquiry, a misconduct has to established by proving it beyond all reasonable doubt; which is the standard in a criminal prosecution. It was then held that in a departmental inquiry, entailing consequences of loss of job; there should be fair play in action and the
OP(CAT) Nos.3151 and 3952-2012 ..30.. proceedings should be in accordance with the principles of natural justice.
22. We observe that, here there is
no allegation of violation of principles of natural justice or that a fair procedure was not followed. The standard of proof in departmental inquiries is of preponderance of probabilities as held in SBI v. R.
Periyasami [2015 (3) SCC 101]. It was held
that the High Court, under Article 226 cannot examine the adequacy of evidence and could interfere only, if there is no evidence on which the Inquiry Officer could have come to such findings or there is perversity in the findings.
23. There is, however a contention that the charges are vague. We already found that the mere presence of the delinquent in the office beyond duty hours, cannot be OP(CAT) Nos.3151 and 3952-2012 ..31..
termed to be a misconduct as such. As to the other allegations, we have to notice the Rules of 1964, under which the proceedings were taken, specifically Rule 3(1)(iii), which deals with conduct unbecoming of a Government servant. Decision No.23, specifically sub-clauses (2) and (5) are also relevant, which we extract hereunder:-
(23) Acts and conducts which amount to misconduct. The act or conduct of a servant may amount to misconduct xxxx
(2) if the act or conduct is inconsistent or incompatible with the due or peaceful discharge of his duty to his master; xxxx
(5) if the act or conduct of the employee is such that the master cannot rely on the faithfulness of his employee;
24. There can be no allegation of vagueness raised when the articles of charges and the statement of imputations of OP(CAT) Nos.3151 and 3952-2012 ..32..
misconduct are read together along with the Rules. The conduct which was alleged to be a misconduct was the unauthorised presence of the delinquent in the VLC room and his attempting to meddle with the surveillance camera. The delinquent does not have any case to justify his presence inside the VLC room. As far as the contention that no vandalism as such occurred, we can only observe that the timely intervention of the Peon averted either the destruction or the removal of the camera.
25. Roop Singh Negi (supra) is not
applicable since we already found that the report is not based on mere conjectures and surmises. Parma Nanda (supra) squarely answers the contention of the learned Senior Counsel as to the order being also based on irrelevant considerations making it liable OP(CAT) Nos.3151 and 3952-2012 ..33.. to be set aside, especially in the context of the harshest penalty of dismissal from service having been imposed.
26. Dhirajlal Girdharilal v. CIT
[AIR 1955 SC 271] found that “when a court of facts acts on material, partly relevant and partly irrelevant, it is impossible to say to what extent the mind of the court was affected by the irrelevant material used by it in arriving at its finding”(sic); making the order itself vitiated. However, the said statement of law was explained in State of Orissa v. Bidyabhushan Mohapatra [AIR 1963 SC 779]. In that case the Hon'ble Supreme Court reversed the impugned order on the ground that if the dismissal could be supported on any finding as to substantial misdemeanor, for which the punishment could lawfully be imposed, it was not for the
OP(CAT) Nos.3151 and 3952-2012 ..34.. Court to consider whether that ground alone would have weighed with the authority dismissing the public servant. This position has been further affirmed in State of Maharashtra v. B.K.Takkamore [AIR 1967 SC 1353].
27. Parma Nanda (supra)
unequivocally stated that the jurisdiction of the Tribunal in disciplinary matters, cannot be equated with an appellate jurisdiction. When the order is not arbitrary or utterly perverse, if the penalty can lawfully be imposed and is imposed on the proved misconduct, it was
held the Tribunal has no power to substitute
its own discretion for that of the authority.
28. Going by the above binding precedents, it may not be proper for us to OP(CAT) Nos.3151 and 3952-2012 ..35..
interfere with the punishment and the Tribunal too has not ventured to do that. However, we have to express our disagreement with the finding of the Tribunal that the allegations were not serious enough to enter a finding of lack of continued faithfulness, merely for the fact that there was no damage caused to the camera or that it was not removed or for the proved misconduct being a solitary one. It is nobody's guess as to what would have happened, if there was not an intervention by the Peon at that time, which was also accidental and definitely not premeditated.
29. Even then we have to notice that there was friction between the Administration and the staff and that one of the admitted cause was the installation of surveillance cameras within the office OP(CAT) Nos.3151 and 3952-2012 ..36..
rooms. We here go back to the observations made at the beginning of our judgment. It is a fact that an agitation was going on against the actions of the Administration and passions were inflamed. There is also sufficient material to find that a number of persons were proceeded against and many were given various punishments. One other employee too was dismissed from service, in which there was an interference caused by a Division Bench of this Court, which has now been stayed by the Hon'ble Supreme Court. We would not venture to interfere with the punishment, because it is the exclusive premise of the disciplinary authority, so is the satisfaction entered into of the act having raised a serious suspicion as to the delinquent employee's continued faithfulness. We would not attempt to
OP(CAT) Nos.3151 and 3952-2012 ..37.. substitute any of these, with our own world view as to what is reasonable in the given circumstances. The real cause for the employees agitation is not placed before us nor would it justify the attempted act of vandalism of public property.
30. All of these said; the fact
remains that there was rancor of the highest level between the Administration and the employees and there were actions initiated against many, the eventual result of which was also interfered with by this Court; finding at least some of it to be in the nature of a retaliatory measure. Considering the fact that the delinquent had 22 years of unblemished service and quiet a number of years before retirement, it could be considered whether the harshest punishment of dismissal was imperative; on a
OP(CAT) Nos.3151 and 3952-2012 ..38..
deliberation of all the circumstances especially the mitigating ones in favour of the employee, reckoning also his prior conduct in service. If the delinquent had been in service, he would not still have superannuated. Even if his continuance in service was not warranted, he could have been sent out by a compulsory retirement, which would entitle him to a pension. We hasten to add that we are not in any manner directing a particular punishment and the Disciplinary Authority will have the absolute discretion to decide on the punishment which could be that suggested or even lesser than that. In the totality of the circumstances, we dispose of the original petitions, directing the Appellate Authority to consider the issue of imposition of
OP(CAT) Nos.3151 and 3952-2012 ..39.. punishment once more. The parties are left to suffer their costs. The delinquent shall appear before the Appellate Authority within a period of one month from the date of
receipt of a certified copy of this judgment
and the Appellate Authority shall fix a date of hearing again within one month therefrom and pass final orders within a month of hearing the delinquent. Sd/- K.VINOD CHANDRAN JUDGE Sd/- V.G.ARUN JUDGE SB/24.10.2019 OP(CAT) Nos.3151 and 3952-2012 ..40.. APPENDIX OF OP (CAT) 3151/2012 PETITIONER'S/S EXHIBITS:
EXHIBIT TRUE COPY OF THE OA 921/2010 WITHOUT ANNEXURES P1 DATED 24/09/2010. EXHIBIT TRUE COPY OF THE MEMORANDUM NO.DAG P1 A (A)/C.CELL/DA/AS/2007 OF THE 3RD RESPONDENT IN THE OA DATED 21/12/2007. EXHIBIT TRUE COPY OF THE WRITTEN STATEMENT OF DEFENCE P1 B SUBMITTED BY THE APPLICANT IN THE OA DATED EXHIBIT TRUE COPY OF THE INQUIRY REPORT OF THE P1 C INQUIRING AUTHORITY DATED 19/02/2009. EXHIBIT TRUE COPY OF THE DAILY ORDER SHEET DATED P1 D 21/05/2008. EXHIBIT TRUE COPY OF THE OBJECTION SUBMITTED BY THE P1 E APPLICANT IN THE OA DATED 16/03/2009. EXHIBIT TRUE COPY OF THE ORDER NO.SENIOR DEPUTY P1 F ACCOUNTANT GENERAL (A)/C.CELL/AS/DA/2009/809 OF THE 3RD RESPONDENT IN THE OA DATED EXHIBIT TRUE COPY OF THE APPEAL MEMORANDUM PREFERRED P1 G BY THE APPLICANT UNDER RULE 23(II) OF THE CENTRAL CIVIL SERVICES (CLARIFICATION, CONTROL AND APPEAL) RULES, 1965 AGAINST THE ORDER OF PENALTY BEFORE THE 2ND RESPONDENT IN THE OA DATED 18/12/2009. EXHIBIT TRUE COPY OF THE ORDER NO. P1 H AG(A&E)/C.CELL/AS/DA/2010/168 OF 2ND RESPONDENT IN THE OA DATED 01/07/2010. EXHIBIT TRUE COPY OF THE REPLY STATEMENT FILED IN OA P2 NO.921/2010 DATED 22/11/2010.
OP(CAT) Nos.3151 and 3952-2012 ..41.. EXHIBIT TRUE COPY OF THE COVERING LETTER OF THE P2 A INQUIRING AUTHORITY FORWARDING THE REPORT OF INQUIRY AND RECORDS TO THE DISCIPLINARY AUTHORITY DATED 19/02/2009. EXHIBIT TRUE COPY OF THE ORDER OF THE CENTRAL P3 ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH IN OA NO.921/2010 DATED 13/07/2012. OP(CAT) Nos.3151 and 3952-2012 ..42.. APPENDIX OF OP (CAT) 3952/2012 PETITIONER'S/S EXHIBITS: EXT.P1 TRUE COPY OF THE ORIGINAL APPLICATION NO.921/2010 DATED 24.09.2010 WITH ITS ENCLOSURES, FILED BY THE PETITIONER BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH
ANNEXURE TRUE COPY OF THE ORDER
A-VI NO.SR.DAG(A)/C.CELL/AS/DA/2009/809 DATED AUTHORITY. ANNEXURE TRUE COPY OF ORDER NO.AG A-VIII (A&E)/C.CELL/AS/DA/2010/168 DATED 01/07/2010 OF THE 2ND RESPONDENT. ANNEXURE TRUE COPY OF THE MEMORANDUM A-I NO.DAG(A)/C.CELL/DA/AS/2007/925 DATED ANNEXURE TRUE COPY OF THE WRITTEN STATEMENT OF DEFENCE A-II DATED 25/01/2008 SUBMITTED BY THE PETITIONER. ANNEXURE TRUE COPY OF THE INQUIRY REPORT DATED A-III 19/02/2009 OF THE INQUIRING AUTHORITY. ANNEXURE TRUE COPY OF THE DAILY ORDER SHEET DATED A-IV 21/05/2008. ANNEXURE TRUE COPY OF THE OBJECTION DATED 16/03/2009 A-V SUBMITTED BY THE PETITIONER BEFORE THE DISCIPLINARY AUTHORITY. ANNEXURE TRUE COPY OF THE APPEAL MEMORANDUM DATED A-VII 18/12/2009 PREFERRED BY THE PETITIONER UNDER RULE 23(II) OF THE CENTRAL CIVIL SERVICE (CLASSIFICATION, CONTROL AND APPEAL) RULES, 1965 BEFORE THE 2ND RESPONDENT. EXHIBIT THE TRUE COPY OF THE REPLY STATEMENT DATED P2 22.11.2010 FILED ON BEHALF OF THE RESPONDENTS 1 TO 3 BEFORE THE CENTRAL ADMINISTRATIVE TRIBUNAL
OP(CAT) Nos.3151 and 3952-2012 ..43.. ANNEXURE TRUE COPY OF LETTER DATED 19/02/2009 OF THE R1(A) INQUIRING AUTHORITY FORWARDING THE REPORT OF INQUIRY AND CONNECTED RECORDS. EXHIBIT TRUE COPY OF THE ORDER DATED 13/07/2012 OF THE P3 CENTRAL ADMINISTRATIVE TRIBUNAL IN OA NO. RESPONDENTS EXTS: NIL // TRUE COPY // P.A TO JUDGE