Gouranga Charan Poi Vs. Union of India (Uoi) and ors. - Court Judgment

B.N. Mahapatra, J.

1. Challenging the legality & propriety of the Order Dated 7.4.1998 (Annexure-9) passed by the Learned Central Administrative Tribunal (hereinafter referred to as the 'Tribunal'), Cuttack Bench, Cuttack, in O.A. No. 127 of 1992, refusing to quash the Orders Dated 23.10.1989 & 28.02.1991 under Annexures-7 & 8 respectively, the Petitioner has filed this Writ Petition with a prayer to quash Annexures-7, 8 & 9 & for a direction to Opposite Party No. 2-Commissioner, Central Excise & Customs, to reinstate him in service granting all consequential service & financial benefits with retrospective effect.

2. The facts & circumstances giving rise to the present Writ Petition are that the Petitioner was a confirmed Lower Division Clerk (hereinafter referred to as the 'I.D. Clerk') in the office of the Assistant Commissioner Central Excise & Customs, Cuttack. While working as such, a departmental proceeding was initiated against ,the Petitioner under Rule 14 of Central Civil Services (Classification, Control & Appeal) Rules, 1965 (for short, 'the Rules, 1965') by the Deputy Collector (P&E;), Central Excise & Customs, Bhubaneswar vide memorandum dated 15.12.1987. The Petitioner was asked to submit his written statement of defence within ten days from the date of receipt of the said memorandum & also to state if he desired to be heard in person. The charges leveled against the Petitioner relate to his remaining frequent absent from office without prior permission and/or without any application for grant of leave & attending office late & leaving office early without any application or permission for the same.

The Petitioner submitted his written statement of defence (Annexure-2) on 14.1.1988. Enquiring Officer & Presenting Officer were appointed by the Deputy Collector (P&E;), the disciplinary authority, under his letters (Annexures-3 & 4) both dated 13.1.1988. The enquiry was conducted & the Enquiring Officer submitted the enquiry report after completion of the enquiry. Considering the enquiry report & the case record, the Addl. Collector (P&E;) Central Excise & Customs, Bhubaneswar, vide his order, dated 23.10.1989 (Annexure-7) imposed punishment of removal from service against the Petitioner under Rule 11 (viii) of the Rules, 1965. Against the said order, the Petitioner filed appeal & the Appellate authority vide its Order Dated 28.2.1991 (Annexure-8) held that the Disciplinary Authority had rightly imposed the penalty of removal from service under the relevant rules & declined to interfere with the order of the Disciplinary Authority. Being aggrieved by the orders passed by the Disciplinary Authority & the Appellate Authority, the Petitioner filed Original Application No. 127 of 1992 before the Tribunal, which was rejected on 07.04.1998. Hence, this Writ Petition.

3. Mr. Prafulla Kumar Kar, Learned Counsel appearing for the Petitioner vehemently argued that Sub-rules (5)(a) read with Sub-rule (2), (3) & (6) of Rule 14 of Rules, 1965 envisages that on receipt of the written statement of defence, disciplinary authority has to consider & form an opinion as to whether there are good grounds for enquiry & then only the Enquiring Officer can be appointed to enquire into the truth of imputation of misconduct & misbehavior of the Petitioner. This statutory requirement has not been fulfilled in the present case. The entire proceeding is vitiated as appointment of Enquiring Officer & Presenting Officer was made on 13.1.1988 without taking into consideration the written statement of defence filed on 14.01.1988. In the enquiry, the Petitioner fully co-operated on all the dates. The Administrative Officer approved the E.L., C.L. or R.H. for the days the Petitioner was absent from office. Rule 3(1) of CCS (Conduct) Rules, 1964 does not at all spell out misconduct &, therefore, the charge being vague, the enquiry is vitiated. The Petitioner has also not been afforded adequate opportunity to defend his case. The procedure prescribed under Sub-rule (19) of Rule 14 has not been followed. Before the final order was passed, the disciplinary authority did not make a copy of the enquiry report available to the Petitioner enabling him to have his say in writing to the disciplinary authority. Thus, the constitutional requirements as laid down in Article 311(2) of the Constitution of India have not been fulfilled. Non-supply of enquiry report to the Petitioner before passing of the final order of punishment is violative of cardinal principles of natural justice & provisions contained in the Government of India, Department of Personnel & Training Office Memorandum No. 11012/13-85-Estt.(A), dated 26.06.1989. Even though Deputy Collector was the disciplinary authority, the final order under Annexure-7 has been passed by the Addl. Collector, who did not have any locus standi in the entire proceeding. The Tribunal has confirmed the orders of the disciplinary authority & Appellate authority as well by taking into consideration certain extraneous matters like leave taken in the past. The matter, which was not the subject matter of specific charge in the charge sheet, cannot be utilized against the delinquent as the same is prohibited by the Government of India in MHA OM No. 134/20/68-AVD dated 28.8.1968. The Petitioner remained on long leave from 12.11 1981 to 6.11.1986 because of sickness & the same was duly sanctioned by the authority vide Order Dated 08.10.1987 (Annexure-10). The punishment imposed is disproportionate even assuming that the departmental proceeding is valid & it was conducted in accordance with Rule 14 of the Rules.

4. Mr. J.K. Mishra, Learned Asst. Solicitor General for Union of India, contended that the Memorandum of charges was served on the delinquent on 17.12.1987 directing him to submit his written statement of defence, if any, & also to state if he desired to be heard in person within ten days of receipt of the said Memorandum. The said period expired on 27.12.1987. The Petitioner neither submitted his defence reply nor asked for extension of time for submission of the same till 14.01.1998. Since it was a major penalty proceeding under Rule 14 of the Rules, the Enquiring Officer & the Presenting Officer were appointed by the Disciplinary Authority by Order Dated 13.01.1988. The Petitioner remained absent from office unauthorisedly on the dates mentioned in Article-1 of Annexure-II of the Charge Memo & used to attend office late & leave office early on the dates mentioned in Article-II of Annexure-II of the Charge Memo. Neither the Deputy Office Superintendent nor the Administrative Officer has ever condoned such action of the delinquent. The Deputy Office Superintendent under whom the delinquent was working stated that wherever there are marks for C.L. & E.L. in the attendance register, they have been marked after receiving the leave applications from the Charged Officer, but that does not mean that the leave was sanctioned. Leave applications were not received from the Charged Officer on several occasions. The prosecution witness; the Administrative Officer & the Deputy Office Superintendent pointed out that the delinquent had often remained absent from office unauthorisedly & did not maintain punctuality in attending & leaving office. Those allegations were not refuted by the Charged Officer during the course of hearing nor did he cross-examine the prosecution witnesses. The charge framed against the Charged Officer vide Article-I & II of the charge Memo are proved. The Charged Officer on 28.04.1988, i.e., the date of regular hearing submitted that he was fully satisfied with the proceedings of the enquiry. Under Sub-rule (19) of Rule 14 of the Rules, 1965, it is not mandatory that the Presenting Officer should submit his written brief to the Enquiring Officer with a copy to the Charged Officer. The enquiry was conducted by the Enquiring Officer following the due procedure. Non supply of the copy of enquiry report before passing of the impugned order of punishment by the disciplinary authority does not prejudice the delinquent. There has been no denial of natural justice as the records clearly reveal that the Petitioner either was absented from duty without prior permission or did not apply for leave properly as per the Rules. The case of the Petitioner is based on evidence, which leaves no scope for benefit of doubt. As per the provision in vogue, copy of the enquiry report was supplied to the charged officer along with the final decision. The Deputy Collector was the disciplinary authority at the time of issuance of memorandum of charge, but subsequently the post of Deputy Collector was re-designated as Addl. Collector.

5. On the rival contentions, that fall for the questions consideration by this Court are as follows:

(i) Whether appointment of Enquiring Officer & Presenting Officer without considering the written statement of defence of the delinquent vitiates the disciplinary proceeding?

(ii) Whether non-supply of the copy of enquiry report to the delinquent before passing of the final order by the disciplinary authority vitiates such order?

(iii) Whether from the charge memo, the misconduct as per CCS (Conduct) Rules, 1964 is spelt out?

(iv) Whether the Tribunal while adjudicating an Issue relating to a disciplinary proceeding of an employee can take into consideration any allegation against the Appellant, which does not form a part of the charge memo?

(v) Whether the punishment imposed is disproportionate to the charges proved?

6. So far as the first question is concerned, it is not in dispute that the Enquiring Officer & the Presenting Officer were appointed prior to receipt of the written statement of defence from the delinquent. According to the Petitioner, after receiving the notice to submit written statement of defence, though he asked for time, the same was not allowed to him. However, the Petitioner has failed to bring any material to the notice of the Tribunal as well as this Court that any such application for extension of time to file written statement of defence was submitted before the disciplinary authority. Needless to say that if a delinquent on receipt of the article of charges prefers to remain silent, the disciplinary proceeding which already set on motion shall not take a halt. Disciplinary Authority is always at liberty to appoint Enquiring Authority & Presenting Officer as required under Rule 14 of the Rules. Now the question arises as to whether before appointing Enquiring Authority & Presenting Officer the Disciplinary Authority has to form an opinion that there are good grounds to enquire into the charges. At this stage, it is necessary to quote Sub-rule (5) of Rule 14 of the Rules, 1965 which runs as under:

5(a). On receipt of the written statement of defence, the disciplinary authority may itself inquire into such of the articles of charge as are not admitted, or, if It considers it necessary to do so, appoint under Sub-rule (2), an inquiring authority for the purpose, & where all the articles of charge have been admitted by the. Government servant in his written statement of defence, the disciplinary authority shall record its findings on each charge after taking such evidence as It may think fit & shall act in the manner laid down in Rule 15.

This Rule says that on receipt of the written statement of defence, the Disciplinary Authority may itself enquire into such article of charges as are not admitted, or, if it considers it necessary to do so, shall appoint Enquiring Authority for the purpose. Where all the articles of charges, have been admitted by the government servant in his written statement of defence, the Disciplinary Authority shall record its findings on each charge after taking such evidence as it may think fit & shall act in the manner laid down in Rule 15. The statement of defence is called for from the delinquent only to know which article of charge is not admitted by the delinquent so that enquiry shall be conducted in that respect. Therefore, the contentions taken by the Learned Counsel for the Petitioner that on receipt of the written statement of defence the disciplinary authority has to consider & form an opinion as to whether there are good grounds for enquiry & only then an Enquiring Officer should be appointed to enquire into the correctness of the imputation of misconduct & misbehaviour, is not tenable. In the present case, admittedly the delinquent has not submitted his written statement of defence within the time stipulated in the memorandum dated 15.12.1987. In view of the above, the disciplinary authority has rightly appointed the Enquiring Officer & Presenting Officer in absence of the written statement of defence of the delinquent to enquire into both the article of charges.

7. The second question is as to whether non-supply of the inquiry report to the delinquent before passing of final order of punishment renders such order a nullity. It is not in dispute that in the instant case, copy of the enquiry report has not been supplied to the delinquent before the final order of punishment was passed. A copy of the said enquiry report was sent only along with the final order of punishment. According to the delinquent, he was prejudiced for non-supply of a copy of the enquiry report. Principles of natural justice demand that Petitioner must be supplied with a copy of the enquiry report to prepare his defence & put forth the same before the disciplinary authority to defend his case. Therefore, non-supply of a copy of the enquiry report vitiates the entire disciplinary proceeding. Relying on the Department of Personnel & Training Office Memorandum No. 11012/13-85-Estt.(A), dated 26.06.1989, it was argued that in every case wherein an enquiry has been conducted in accordance with the provisions of Rule 14 of the Rules, the disciplinary authority, if it is different from the Enquiring authority shall, before making a final order in the case, forward a copy of the enquiry report to the concerned government servant giving him opportunity to have his say in writing to the disciplinary authority within fifteen days of such receipt.

Mr. J.K. Mishra, Learned ASG submitted that there is no rule for providing a copy of the enquiry report to the delinquent officer. In any event, the delinquent has not proved as to how he was prejudiced due to non-supply of enquiry report before passing of the final order of punishment.

In order to appreciate the rival contentions, it will be appropriate to refer to some of the decisions of the Apex Court on this Issue.

In Union of India and Ors. v. Mohd. Ramzan Khan : AIR 1991 SC 471, the Apex Court held as follows:

Deletion of the second opportunity from the scheme of Article 311(2) of the Constitution has nothing to do with providing of a copy of the report to the delinquent in the matter of making his representation. Even though the second stage of the enquiry in Article 311(2) has been abolished by amendment, the delinquent is still entitled to represent against the conclusion of the Enquiry Officer holding that the charges or some of the charges are established & holding the delinquent guilty of such charges. For doing away with the effect of the enquiry report or to meet the recommendations of the Enquiry Officer in the matter of imposition of punishment, furnishing a copy of the report becomes necessary & to have the proceeding completed by using some material behind the back of the delinquent is a position not countenanced by fair procedure. While by law application of natural justice could be totally ruled out or truncated, nothing has been done here which could be taken as keeping natural justice out of the proceedings & the series of pronouncements of this Court making rules of natural justice applicable to such an enquiry are not affected by the 42nd amendment. We, therefore, come to the conclusion that supply of a copy of the enquiry report along with recommendations, if any, in the matter of proposed punishment to be inflicted would be within the rules of natural justice & the delinquent would, therefore, be entitled to the supply of a copy thereof. The Forty-Second Amendment has not brought about any change in this position.

In Managing Director, ECIL, Hyderabad and Ors. v. B. Karunakar and Ors. : (1993) 4 SCC 727, the Apex Court inter alia held that since the denial of the report of the Enquiring Officer is a denial of reasonable opportunity & a breach of the principles of natural justice, it follows that the statutory rules, if any, which deny the report to the employee are against the principles of natural justice &, therefore, invalid. The delinquent employee will, therefore, be entitled to a copy of the report even if the statutory rules do not permit furnishing of the report or are silent on the subject. The Apex Court in Managing Director, ECIL case (supra) further held that both administrative reality & public interests require that the orders of punishment passed prior to the decision in Mohd. Ramzan Khan's case (supra) without furnishing the report of the Enquiring Officer should not be disturbed & the disciplinary proceeding which gave rise to said orders should not be reopened on that account.

The Apex Court in U.P. State Spinning Co. Ltd. v. R.S. Pandey and Anr. : (2005) 8 SCC 264, placing reliance on its earlier Judgment in the case of Managing Director, ECIL, Hyderabad (supra), held that in all cases where enquiry report is not furnished, the Court/Tribunal should not set aside the punishment order. It is only if the Court/Tribunal finds that furnishing of the report would have made a difference to the result in that case, it should set aside the punishment order. In case punishment order is set aside, proper relief to be granted is to direct reinstatement of the employee with liberty to the employer to proceed with the enquiry by placing the employee under suspension & continuing enquiry from the stage of furnishing of the report. Reinstatement made on setting aside the enquiry should be treated as reinstatement for the purpose of holding fresh enquiry & no more. The employee would not be entitled to back wages & other benefits on the basis of such reinstatement & he would have to bid culmination of the disciplinary proceeding & the said entitlement would depend on the final outcome therein. The Apex Court in State of Uttaranchal and Ors. v. Kharak Singh : (2008) 8 SCC 236, held that on receipt of the enquiry report, before proceeding further, it is incumbent on the part of the disciplinary/ punishing authority to supply a copy of the enquiry report & all connected materials relied on by the enquiry officer to the delinquent to enable him to offer his views, if any.

In the case at hand, admittedly the enquiry report has not been supplied to the delinquent prior to passing of the final order of punishment by the disciplinary authority. The delinquent-Petitioner on the basis of the enquiry report which was supplied to him along with the order of punishment has not established as to how he is prejudiced because of non-supply of such enquiry report to him prior to passing of the final order of punishment. Moreover, the impugned order of punishment has been passed on 15.12.1987 which is prior to the date on which the decision in Mohd. Ramzan Khan's case (supra) was made, i.e., 20.11.1990.

In view of the above, it cannot be said that non-supply of enquiry report before passing of the final order of punishment vitiates the final order.

8. To deal with the third question as to whether from the charge memo, the misconduct as per CCS (Conduct) Rules, 1964 is spelt out, it is pertinent to see what are the charges against the delinquent. The charges against the delinquent are that he frequently remained absent from office without prior permission & without submitting application for grant of leave. He also failed to furnish any reason to explain his absence when asked by the authorities. Thus, he failed to maintain devotion to duty. The second allegation is that while working as I.D.C., he habitually failed to maintain punctuality in attending the office. Perusal of the above two charges shows that the Charged Officer failed to maintain devotion to duty & acted in a manner unbecoming on the part of a government servant, which is violative of the provisions of Rule 3(i)(ii) & 3(i)(iii) of CCS (Conduct) Rules, 1964. Hence, it cannot be said that misconduct is not made out from the charge memo.

9. The fourth question relates to use of extraneous material by the Tribunal while rejecting the original application of the Petitioner. It is argued on behalf of the Petitioner that the Tribunal has taken into consideration certain extraneous matter, which does not form part of the charge memo to confirm the order of punishment (Annexure-7) by which the Petitioner was dismissed from service & Appellate order (Annexure-8).The Tribunal while confirming the order of punishment has taken into consideration that the Petitioner had remained on leave from 12.11.1981 to 6.11.1986 (1821 days) in past though this leave was duly sanctioned under Order Dated 8.10.1987 with endorsement C. No. II(20)34/ACCT/78/11202 dated 13.10.1987 (Annexure-10). The Government of India in MHA OM No. 134/20/68-AVD dated 28.8.1968 specifies to the effect that it is not appropriate to bring in the past bad record in deciding a penalty unless it forms the subject matter of specific charge in the charge sheet itself. Here it shall be useful to refer to some of the decisions of the Apex Court in this issue. In CIT (Central), Calcutta v. Daulat Ram Rawatmull : (1973) 3 SCC 133, the Hon'ble Supreme Court held that the use of extraneous & irrelevant material in arriving at that conclusion would vitiate the conclusion of fact because it is difficult to predicate as to what extent the extraneous & irrelevant material has influenced the authority in arriving at the conclusion of fact. In H.B. Gandhi, Excise & Taxation Officer-cum-Assessing Authority, Karnal and Ors. v. Gopi Nath & Sons and Ors. : 1992 Supp. (2) SCC 312, the Supreme Court held that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law.

Admittedly, the Learned Tribunal has taken into consideration certain extraneous materials while adjudicating the issues involved in the present case. It has taken into consideration the various dates on which the Petitioner remained absent from duty in the years 1982, 1983, 1984 & 1986 (up to 6.11.1986) although such absence does not form part of the charge sheet. This is certainly not permissible in law. But the fact remains that such consideration of extraneous materials by the Tribunal does not make any effect on the ultimate conclusion reached by the disciplinary authority directing removal of the Petitioner from service.

10. The fifth question deals with the quantum of punishment. Law is well settled that the scope of judicial review as to the quantum of punishment is very limited, & it is permissible only when it is found that punishment is not commensurate with the gravity of the charges. In State of Meghalaya and Ors. v. Mecken Singh N. Marak 2008 AIR SCW 4726, the Apex Court has observed that 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.

While dealing with the question of imposition of sentence, the scope of interference is very limited & restricted to exceptional cases. The jurisdiction of High Court to interfere with the quantum of punishment is limited & it cannot be exercised without sufficient reasons. The High Court although has the jurisdiction in an appropriate case to consider the question in regard to the quantum of punishment, 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 therefor. Unless the punishment imposed by the disciplinary authority or the Appellate authority shocks to the conscience of the Court, it cannot be subjected to judicial review. In Coimbatore District Central Co-operative Bank v. Coimbatore District Central Co-operative Bank Employees Association and Anr. : (2007) 4 SCC 669, the Apex Court held that even prior to Council of Civil Service Union v. Minister for Civil Service 1985 AC 374, the Apex Court has held that if punishment imposed on an employee by an employer is grossly excessive, disproportionately high or unduly harsh, it cannot claim immunity from judicial scrutiny, & it is always open to a Court to interfere with such penalty in appropriate cases.

In the instant case, considering the gravity of the charges, the punishment of removal from service imposed against the Petitioner does not appear to be disproportionate.

11. In view of the above analyses, the Writ Petition fails & dismissed.

L. Mohapatra, J.

I agree.