The Central Administrative Tribunal reconsidered an order dismissing a writ petition challenging an appellate authority's confirmation of staff disciplinary punishment. The Tribunal held that the appellate order addressed the applicant's grievances sufficiently and found no violation of natural justice or lack of evidence, dismissing the appeal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
O.A. No. 549 of 2017
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CENTRAL ADMINISTRATIVE TRIBUNAL CUTTACK BENCH
No. OA 549 of 2017
Present: Hon’ble Mr. Sudhi Ranjan Mishra, Judicial Member Hon’ble Mr. Pramod Kumar Das, Administrative Member
……Applicant
VERSUS
……Respondents
For the applicant : Mr. S S Das, counsel
For the respondents: Dr. C R Mishra, counsel
Heard & reserved on : 14.03.2024 Order on : 01.04.2024
O R D E R
Mr. Sudhi Ranjan Mishra, J.M.
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The applicant challenging the order of appellate authority wherein the punishment imposed by the disciplinary authority has been confirmed has filed this OA praying for following reliefs:
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decided the issue by adhering to the Doctrine of Probability which is against the sanction of law.
16. Having perused the records in the case, we have heard learned counsels for both parties, and gone through the written notes of submission filed by both the learned counsels.
17. The first issue to be discussed is the point raised by the applicant that without consideration of written notes of submission submitted by the delinquent, the Disciplinary Authority went ahead to appoint the 10 and PO, in violation of Rule-9(a)(1) of the RS(D&A), Rules, 1968. The delinquent had submitted his written statement of defence on 7.6.2007, a copy of which is placed at A/2 of this O.A. By an order of the same date, i.e., 7.6.2007, the Disciplinary Authority appointed the 10, this order is placed at A/3. This order states that the Disciplinary Authority
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considered that an inquiry officer should be appointed to enquire into the charges framed against the delinquent. There is however, no mention about the Disciplinary Authority receiving and considering the written statement of defence. The learned counsel for the Railways submitted that the Disciplinary Authority had considered the written statement of defence received on the very same day before appointing the IO. But non-mention of this in the order renders the submission of respondents ineffectual. The order should have specifically mentioned that the D.A. has considered the written statement of defence before appointing the 1.0. Further, although it is possible that the D.A. considered the written statement of defence on the day on which it was received and decided to appoint the 10, it is quite improbable considering the normal period of time that is taken in the Government for disposal of such matters. There is a grave area of doubt in this regard, and therefore, prima facie, we have to take that written statement of defence was not considered, because had it been considered, a noting to that effect would have found place in the order appointing the I.O.
18. The next point to be decided is in the event when the written statement of defence was not considered, thereby resulting in a procedural violation, whether it is serious enough to vitiate the entire process of inquiry. In the written statement of defence, delinquent has denied the charges. After the appointment of IO, the delinquent has participated in the inquiry and has raised no further issues. He has submitted a defence statement dated 7.7.2007 to the Enquiry Officer copy of which is placed at A/4. A copy of enquiry report was forwarded to the delinquent vide letter dated 10.7.2007(A/5). In the inquiry evidence from both prosecution witness and defence witnesses were collected and examined by the IO. After receiving the report of inquiry, the delinquent has given his final written statement of defence by is letter dated 18.7.2007.The Disciplinary Authority has issued punishment notice dated27.7.2007 in which he mentions that he has gone through the charge sheet, the delinquent's explanation dated 7.6.2007, the inquiry report submitted by 10 and the final defence statement of the delinquent after receiving the enquiry report. All the above mentioned facts go to prove that the delinquent has been provided opportunity of being heard at every stage. The principle of 'audi alteram partem' has been complied with. There is no instance in which such opportunity has been denied o the applicant. This issue of violation of Rule-9(a) (i) of the Railway Servants (D&A) Rules was also not agitated by the delinquent/applicant before the Appellate Authority. This alleged violation has not acted to the prejudice of the delinquent/applicant in the various stages of the enquiry, and a case could not be made out that principle of natural justice was not followed in conducting the departmental enquiry. Therefore, following the ratio of decision in the case of State Bank of Patiala vs. S.K.Sharma, cited by
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the learned Standing counsel of Railways, we are of the opinion that the alleged violation is not of such substantive nature that it would be interpreted as to have vitiated the entire proceeding.
19. The learned counsel for the applicant has raised the second important issue that the orders of statutory authorities in this case, especially the appellate authority, are not detailed in nature. It is specifically alleged that appellate authority's order is not a 'speaking order' and is not in consonance with Rule 22(2) of RS(D&A) Rules, 1968. It is submitted that according to this statutory provision, the appellate authority should cover the following aspects in his order.
Whether the procedure laid down in the Rules has been complied with. Whether the findings of the disciplinary authority are warranted by the evidence on record.
Whether the penalty or enhanced penalty is adequate, inadequate or severe.
20. The Railway Board has in letter dated 24.9.2002 emphasized the importance of passing of reasoned and speaking orders by the Disciplinary Authority and Appellate Authority. In the present case, the Appellate Authority's order is alleged to be unreasoned and it is alleged that failure to give reasons amounts to denial of justice.
21. We agree with the point made that reasons should be given while passing orders by the administrative authorities, especially when they are discharging statutory functions as Disciplinary Authority and Appellate Authority. An unreasoned order smacks of arbitrariness. An order supported by reasons makes the process of thinking of the authority passing such order, transparent. In the opposite scenario, an order unsupported by reasoning makes the thinking process opaque. Passing of a speaking order is an important part of process of justice, since it gives an opportunity to the person affected by the order to further agitate his grievances based upon that part of the reasoning which he considers to be prejudicial and repugnant to his rights.
22. Against this touchstone, we need to examine the order of the Appellate Authority with specific reference to whether it is a reasoned and speaking order, and whether it addresses the objections raised by the delinquent in his appeal petition. In the appeal petition dated 14.8.2007(A/8), the delinquent/applicantraised issues with regard to factual aspects of the charges:S mainly that he was in fact black-mailed by the complainant's family, that it was a private transaction, and that the punishment was imposed just before four days of his retirement. The Appellate Authority's order is dated 23.1.2009(A/9) to which a speaking order is enclosed. The appeal petition has been disposed of by
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six 'bullet points'. The Appellate Authority should have specifically dealt with issues raised by the applicant, and then given his finding. Even if there were no brand new points, natural justice requires that every issue raised should have been addressed. The order should have clearly brought out that there has been application of mind. We have considered the submission of learned Standing Counsel for Railways that since the Appellate Authority agreed with the order of the Disciplinary Authority, detailed order was not required. We can agree with him only partially. The order may not be too exhaustive, but it should not be so cryptic that it will look like an order written in a casual attitude. In a proceeding in which the Disciplinary Authority has imposed the punishment of removal from service, the Appellate Authority should have been careful to examine every issue in detail, and "to speak out" his mind before conveying his decision. We are of the opinion that the Appellate Authority's order has fallen short of requirements of natural justice. We are not making observations on the conclusion that he has reached. It willdepend on his consideration, and in this regard we follow the ratio of judgment in the decision of Hon'ble Apex Court in SBI vs. Samerendra Kumar Endao which lays down that power of judicial review is meant to ensure fair treatment and not to ensure that the authority reaches a conclusion which is correct in the eyes of the court. But the standard of consideration as well as communication expected of an Appellate Authority is conspicuous by its absence in this case, and therefore, the same could not be sustained under the law.
23. At this stage of discussion, we would like to pause for a while and reckon the scope of interference of Courts and Tribunals in a matter of disciplinary proceedings. The Hon'ble Apex Court in the case of B.C.Chaturvedi vs. UOI &Ors. reported in AIR1996 SC 484 has ruled that "judicial review is not an appeal from a decision but a review of the manner in which the decision is made". Further, "the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with". It is further laid down that "a review of the above legal position would establish that the disciplinary authority and on appeal, the appellate authority, being fact- finding authorities have the exclusive power to consider the evidence with a view to maintain discipline".
24. Viewed in the light of aforesaid discussions, we are of the considered opinion that the orders of Appellate Authority dated 23.1.2009 is inadequate, unsatisfactory, and not conforming to the principles of natural justice. Therefore, we quash and set aside the order dated 23.1.2009, and remit the matter back to the Appellate Authority with a direction that he will consider the appeal petition afresh on the basis of issues raised in the appeal petition, and also in
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consonance with Rule-22(2) of the Railway Servant(Discipline & Appeal) Rules, 1968, and communicate his decision to the applicant within a period of ninety days of receipt of this order.
Sub: "Disposal of appeal dtd. 14.08.2007 submitted by Sri K.C.Patra as per the order passod by Hon'ble CAT/cuttack. Dtd.09.03.2016
Being the Appellate Authority, I have gone through the case records i.e. charges memorandum, Reply of the CO, departmental enquiry proceedings, PO's brief, defence brief of the CO,IO's report, final defence brief of the CO, speaking order of DA for imposing punishment and appeal of the CO, I find:
1. As per your statement, you had been absorbed as a substitute peon irf Railways It was your choice and willingness for accepting the offer.
2. It is a fact mentioned as per CO's statement.
3. As per your statement, you are admitting to have borrowed money, which indicates your propensity to spend more than you're earning.
4. As per your statement despite having bad financial condition, you decided to go ahead with construction of your house at native place which would further deepen you financial burdens.
5 That discussion of your family matters with your friends and neighbors as in this case, with the family of Sri B.K.Beura are your private affairs with which the administration is in no way related as long as, it is enacted beyond the peripheries of your official jurisdiction. However your statement, itself mentions that in utter need of money, your friendship increased with family of Beura. This obliquely indicates your intention to deepen friendship for borrowing money from Beura couple.
6. In spite of knowing that you didn't have the capability to pay back still your willingness to avail the loan amount even without interest is some what contradictory. and you also agreed to the proposal of Smt. Beura after intervention of Sri Beura when they agreed to lend you the amount without interest.
7. In due course of time Smt Beura had approached to you with a request proposal seeking employment of her daughter and son-in-law through your mediation to which. you stated that, you are also trying mad for getting employments of your sons. In spite of that the couple (Sri & Smt Beura) pressurized you to find a way to materialize the request of employing their daughter & son-in-law on basis of mutual convenience between you and
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Beura family. You could have avoided being a victim to such a pressure by the Beura couple and could have remained away from such a pressure which was illegal by anticipating the consequences of your involvement in such activities, which was illegal. But in contrary you came under pressure and succumbed to a request which was illegal and that to within the jurisdiction of your job.
8. Due to your poor financial condition, after the death of your parents, some delay occurred regarding your commitment to pay back the money to Beura couple in time During this period you were suddenly persuaded by the Beura couple to try, for their wards, at the cost of money and you were also reminded repeatedly at regular intervals to find a source by any means, although the same was negated by you with a logic that, you had good relation with some of the officers as named by the Beura couple and that your relation with them as such was of a peon only. However your negation is not convincing in light of your conversation in the audio CD, which has been taken as evidence in the enquiry report. However you were still forced to do the same for them. Since you were well aware from the very beginning regarding your financial conditions, but still you have involved yourself into a transaction involving money.
9. After transfer of Sri Beura to SBP Division One of his colleague Sri K.S. Paikray requested you to return the money to Smt. Beura which was, as you have stated in good faith returned to her on 02.12.2006 in presence of two witnesses.
10. As far as the audio CD referred by you is concerned the same is thoroughly examined by the enquiry committee and the context in that audio CD has been analyzed, scrutinized to arrive at a conclusion that, you had a discussion with the Beura couple regarding transaction of money for the sake of arranging employment in Railway in favour of your sons as well as their daughter and son-in-law of the Beura couple.
11. On the basis of scrutiny by the vigilance department and analysis of your discussion in the audio CD (RUD-1) the matter as raised by you regarding blackmailing by the Beura couple is not convincing.
12. You have inquisitively asked as to how the DA inquiry has ended with a punishment on you, i.e, as stated by you "the bribed" (i.e. yourself) but although the crime has occurred from the "briber" (Beura couple) side. This implies that you are indirectly accepting the fact, that you have been bribed, in other words; the crime has occurred because of some illegal transaction of pecuniary nature in between you and Beura couple. This consequently ended with an imposition of punishment on you, after necessary D & A inquiry on the strength of vigilance investigation, although nothing happened to the complainant Smt Beura and her husband. In this context it is very well implied that you had the willingness to accept the illegal pecuniary gratification from the Beura couple (Briber) and you, remained silent intentionally, with anticipation that your involvement might be exposed as a party to such illegal transaction and failed to inform your authorities and intentionally avoided bringing the activities of Beura couple in spite of knowing that, they were bribing you for arranging employment in Railways. Had you been honest and remained within your integrity, you could have brought the mater to light of
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the competent authority by raising a complain against the Beura couple (Briber).
13. You had alleged that the department has taken action against you for a private transaction without going into the details.
In this context it is pertinent to say that, although, as per the provisions of service conduct rule, private transactions are not allowed by the government employees and the administration doesn't take cognizance till a formal complaint has been lodged against a particular employee. On the basis of departmental investigation, vigilance report, and other evidential records i.e. audio visual materials, related official documents, statement of witnesses, court papers etc, are also taken into consideration before taking any decisions regarding D & A proceedings by a competent authority of a particular department, which relates to issues arising out of such private matter.
14. It is also redressed by you as to how the husband of Smt Beura is unaware of the money lending being the only earning member of the family. In this context conclusion can be arrived over the justification that if involved the husband of Smt Beura belonging to RPF department could also have been highlighted through any of the evidential records.
15. The CO all the while through the course of enquiry did not disprove his. misconduct and could not convince his innocence through his representation, that he had taken money and did not return, as RUD-3,4 had been disputed. That on the basis of logic given in item-14, a conclusion can be drawn that administration is in no way a part of any transaction, private to some employee, which necessarily doesn't imply that D & A will not be initiated against a particular employee, of a particular department, by the administration, if suspected to be guilty. If a complain of any matter amounting to such a gravity as in this case, a transaction of financial nature is concerned, as an employer in order to maintain discipline, within the premises of the government organization must initiate D & A. In this case administration has taken the appropriate step under the purview of D & A by taking up an employee involved in an illegal private monetary transaction of pecuniary nature by acting as a loanee which has become public after one of the participants in the transaction had lodged a serious complain with the vigilance department.
In this case the integrity of the employee towards its employer is not trustworthy. Moreover the D & A proceedings have been held by competent officers who have followed all procedural aspects of D & A rules. The followings are the rules which are to be followed during the course of any kind of disciplinary proceedings, and the comparisons with this case are as follows. Where as in item 12 you have clearly mentioned the word "briber" and "Bribed" against the word loaner and Loanee and you have asked to take action against the "Briber".
As per rule-9 of D & A 1968, the following are the ideal procedures which have been followed in the case of K.C.Patra.
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1. As per Rule-9, for imposing major penalty on a serving employee one such reason is "if he found guilty of possessing assets disproportionate to known sources of income or found guilty of having accepted or having obtained from any person any gratification, other than legal remuneration, as a motive or reward for doing or for bearing to do any official act, then the penalty of removal or dismissal" from service may be imposed. For this reason an enquiry was conducted on 29.05.2007 and all the paraphernalia provided in the public servants (Enquiry) Act, 1850 (37 of 1850) has been followed.
2. Under item No-2 of Rule-9, since the DA is of the opinion that there was sufficient ground for inquiring into the truth of imputation of misconduct holding f an inquiry by the vigilance department is justified. So, a vigilance view was sought by conducting an enquiry which is under this rule.
3. The Board of enquiry was constituted of DOM Sri L.D.Behera, as IO/BBS & Ch.VI (T)/BBS Sri H.K.Panda as P.O. as per the Rule 9 (3) and both these official were holding a rank higher than the C.O. against whom the enquiry was conducted.
4. Since in to the rule in this itern the Board of Enquiry consisted of two members i.e. DOM Sri L.D.Behera as I.O, Ch.V'. (1) H.K.Panda as the P.O.and Dy.CVO/T Sri H.K.Dutta being the senior most member acted as the Presiding Officer.
5. Not applicable.
6. Since in this case the DA is not the enquiring authority the provision under Rule-10 item-(1) to (VI) have been complied with.
7. In this clause it is stated that the Railway servant should be apprised of the articles of charge, the statement of the imputations of misconduct, or misbehavior and a list of documents and witness by which each article of charge is proposed to be sustained, which was also followed in this case. The ex-Railway employee was asked to submit a written statement of his defence which was duly submitted by the C.O.
8. Under this rule the railway servant had submitted his statement of defence and necessary compliance has been done in this regard.
9. Under the provision of this item-1 Rule the DA was convinced that an enquiry should be conducted and under item no-2 a Board of enquiry was also constituted. Since the CO admitted of some of the charges, like accepting money. The DA has also complied with the provisions under this rule.
10. DA is not the Enquiring authority in this case hence all clauses from item no-(1) to (VI) have also been complied with.
11. As per this clause the date of receipt of nomination of enquiring authority is on 07.06.2007 and the enquiry held on 18.06.2007 so, that it is after passing of 10 days, which is as per this clause.
12. Since the CO has appeared within the specified time, hence no comments.
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13. (a): As per this clause a Railway servant may represent his case with the assistance of any other Railway servant which was accepted by the administration. And Sri R.C.Swain OS-II/CPO/BBS was present during the investigation as Defence Counselor
14. The clause under this has been compiled with by sticking to the time period for conducting the enquiry within one month of nomination of the assisting Railway employee.
15. This clause has been complied with as per provision.
16. This clause has been complied with as per provision.
17. As per this clause the oral and documentary evidence by which the articles of charges are proposed are produced, examined, cross examined, reexamined by inquiring authority.
18. Since it did not appear to be necessary for production of any evidence, not included in the list given to the Railway servant and all related documents were available with the concerned authorities. This clause is not applicable.
19. Under this clause the CO has produced a written defence statement as per his preference.
20. During the enquiry, the witnesses and evidences are re-examined and cross examined in presence of the entire member who are attended this case.
21. All the opportunities are given to C.O during the enquiry.
22. The Inquiring Authority, heard the P.O. after the completion of the production of evidences and written briefs from both side have been complied and collected.
23. The Railway servant submitted the written statement of defence in time and an enquiry was conducted prior to taking any kind of discussion.
24. Under this clause the same is not applicable because the then inquiry officer Sri L.D.Behera DOM/KUR has not been succeeded by any other I.O.
25. After conclusion of inquiry the report which was prepared, complied the provision laid down in item A, B, C & D under this clause.
Conclusion:
Having gone through the whole case, reports and other relevant documents including representation and order of DA and considering the mercy appeal point to point in light of material facts, evidences, enquiry report and after careful thought and due dilignece undersigned is of the view that the appeal doesn't merit consideration as indicated in point by point observation of the mercy appeal,. Further the due procedure as prescribed in Rule-22(2) of the Railway Servant (Discipline & Appeal), Rules, 1968 has also been followed to
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complete DA proceedings. Thus I uphold the punishment imposed by DA considering the gravity and proof of misconduct in the basis of available facts and evidences.
Thus the mercy appeal of Sri K.C.Patra is accordingly disposed of as per directives of the Hon'ble CAT/CTC.
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raised the same back then. It is also seen from the appeal dated 14.08.2007 of the applicant that he does not question the statements made by him in the audio CD but only questioned that the complainant had deleted their statements. It is also seen from the said appeal that the applicant himself admitted to having received bribe and questioned the department for not taking action against the briber.
“Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the
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conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
610, Hon’ble Supreme Court has held as under:’
“.........In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:
a) The enquiry is held by a competent authority; b) The enquiry is held according to the procedure prescribed in that behalf; c) There is violation of the principles of natural justice in conducting the proceedings; d) The authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
e) The authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
f) The conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
g) The disciplinary authority had erroneously failed to admit the admissible and material evidence;
h) The disciplinary authority had erroneously admitted inadmissible evidence which influenced he finding; i) The finding of fact is based on no evidence.”
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India &Ors (AIR 1996 SC 484). We are in agreement with the said view held by this Tribunal in OA No. 632/2011. The applicant had been given opportunity to defend himself in the entire proceeding and the charges being proved, the disciplinary authority imposed the punishment order which is also not shocking to the conscience of this Tribunal. The appellate authority order dated 08.06.2016 has also addressed all the points raised by the applicant therefore we do not find any reason to interfere in it.
(PRAMOD KUMAR DAS) (SUDHI RANJAN MISHRA) MEMBER (A) MEMBER (J)
(kb/ps)
3 issues framed by the court
Whether the appellate authority's order was adequate and complied with the principles of natural justice and Rule 22(2) of the Railway Servant (Discipline & Appeal) Rules, 1968.
Whether the Tribunal should interfere with the appellate authority's order which upheld the punishment imposed by the disciplinary authority.
Whether the exclusion of the complainant's affidavit constituted a violation of natural justice or a failure to consider material evidence.
Colour shows how this judgement treated each authority
1 provisions across 1 enactments
Keshab Chandra Patra
Union of India
Divisional Railway Manager, East Coast Railways
The Senior Divisional Operations Manager cum Appellate Authority, East Coast Railways
The Divisional Operations Manager, East Coast Railways
Smt. Snehalata Beura
Sudhi Ranjan Mishra
Pramod Kumar Das
As recorded by the court registry
An original application before a tribunal, most commonly a service dispute before the Central or a State Administrative Tribunal.
2 orders share this CNR
Judgements on the same questions, provisions and authorities, from every court
