Rajendra Prasad Vs The Comptroller And Auditor General Of India And Ors.

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IN THE HIGH COURT OF JHARKHAND AT RANCHI W.P.(S) No. 6976 of 2017

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Rajendra Prasad son of Sri Prem Chand Lal, resident of Quarter No. TypeIII/TS-16, New A.G. Colony, P.O. & P.S.-Doranda, Dist.-Ranchi, PIN No.834002, (Jharkhand).

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… … Petitioner

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Versus

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The Comptroller & Auditor General of India, having its office at Pocket-9, Din Dayal Upadhyay Marg, P.O. + P.S.-New Delhi, New Delhi.

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The Principal Accountant General (Audit), Jharkhand, having its office at P.O. & P.S.-Doranda, Dist.-Ranchi.

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The Accountant General (Audit), Jharkhand, Ranchi, having its office at P.O. & P.S.-Doranda, District-Ranchi.

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The Senior Deputy Accountant General (Administration) having its office at Principal Accountant General (Audit), Jharkhand, Ranchi P.O. & P.S.Doranda, Dist.-Ranchi.

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… … Respondents

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CORAM: HON’BLE MR. JUSTICE SUJIT NARAYAN PRASAD HON’BLE MR. JUSTICE SANJAY PRASAD

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For the Petitioner : Mr. Mahesh Kr. Mehta, Advocate For the Respondents : Mr. Sudarshan Srivastava, Advocate

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CAV/Reserved on 28.04.2026 Pronounced on 12/05/2026 Per Sujit Narayan Prasad, J.

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The instant writ petition under Article 226 of the Constitution of India is directed against the order dated 06.07.2017 passed in O.A. No. 051/00247/2015 by the learned Central Administrative Tribunal, Patna Bench, Circuit Bench at Ranchi whereby and whereunder, the original application has been dismissed declining to pass positive direction in favour of the writ petitioner.

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Factual Matrix

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The brief facts of the case as per the pleading made in the writ petition having been enumerated from the original application needs to be referred here which reads as under:

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The applicant, the petitioner herein, while working as Senior Auditor in the office of Principal Accountant General (Audit) Ranchi, was deputed as a member of the Audit Team to conduct the audit of the office of the Superintendent, Sadar Hospital, Daltonganj, Palamu from 10.06.2010 to 17.06.2010. When the Deputy Accountant General (DAG in short) visited the office of the Superintendent, Sadar Hospital, Palamu on 17.06.2010 he found the applicant absent from duty from 12.06.2010 without any formal approval. When an explanation was sought from him, he submitted that he had to rush to Ranchi as he got information in the night of 11.06.2010 from his wife that both his daughters were ill. The applicant contends that he informed the party-in-charge S. Prajapati verbally before leaving the Station though there is some ambiguity on this because there are also references that he did not inform the party-in-charge, rather he informed another person of the party.

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The applicant further contends that he came back to Daltonganj on 16.06.2010 when he did verification of treasury vouchers, but inadvertently he could not put his initial in the said verification which he was supposed to do. Also, inadvertently he submitted a leave application from 17.06.2010 to 24.06.2010, whereas he actually intended to seek leave from 12.06.2010 to 25.06.2010.

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Thereafter, the applicant was issued a charge memorandum under Rule14 of CCS (CCA) Rules by order dated 04.08.2010 mentioning two articles of charges. Article-l stated that the applicant was deputed as one of the party personnel to conduct the audit of the office of the Superintendent, Palamu from 10.06.2010 to 17.06.2010. The DAG on his visit to the office on 17.06.2010 found the applicant absent from duty since

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12.06.2010 without prior approval/sanction of leave from the competent authority. The Article-II stated that the applicant first sent an application on plain paper on 16.06.2010 (evening) for earned leave from 17.06.2010 to 24.06.2010 and not for the period from 12.06.2010 to 24.06.2010. Later when he was marked absent by the DAG he applied for earned leave from 12.06.2010 to 25.06.2010 on prescribed form on 28.06.2010 to cover up his unauthorized absence. Annexure-III of the charge memo gives a list of seven documents and Annexure-IV which is the list of witness mentions the single witness Shri Subhash Prajapati, Assistant Audit Officer who was the team leader of the Audit team.

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Enquiry officer on 19.07.2011 submitted its finding and the disciplinary authority proceeded further for departmental enquiry and vide order dated 04.05.2012 inflicted punishment/ penalty upon petitioner by withholding one increment of pay for 1 year without cumulative effect.

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Against the punishment order dated 04.05.2012, the petitioner filed an appeal dated 17.05.2012 before the Appellate authority stating specifically that for the unavoidable and compelling circumstances, he had to leave the duty camp after getting verbal permission to leave duty camp and after giving information to the party in-charge but, the appeal was dismissed vide order dated 02.05.2013. Thereafter, the petitioner preferred revision application dated 27.05.2012 before the Comptroller Auditor General of India but that also was rejected vide order dated 15.01.2015.

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Aggrieved with the orders passed by the authority, the petitioner preferred O.A. No.051/00247/2015 before the Learned Central Administrative Tribunal.

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The learned Central Administrative Tribunal, Circuit Bench, Ranchi considering the arguments advanced on behalf of the parties had dismissed the original application being O.A. No.051/00247/2015 vide order dated 06.07.2017 against which the present petition is preferred.

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It is evident as per the pleading made as referred hereinabove that the petitioner while working as Senior Auditor in the office of Principal Accountant General (Audit) Ranchi, was deputed as a member of the Audit Team to conduct the audit of the office of the Superintendent, Sadar Hospital, Daltonganj, Palamu from 10.06.2010 to 17.06.2010. When the Deputy Accountant General (DAG in short) visited the office of the Superintendent, Sadar Hospital, Palamu on 17.06.2010 he found the applicant absent from duty from 12.06.2010 without any formal approval. When an explanation was sought from him, he submitted that he had to rush to Ranchi as he got information in the night of 11.06.2010 from his wife that both his daughters were ill. The applicant contends that he informed the party-in-charge S. Prajapati verbally before leaving the Station. The applicant further contends that he came back to Daltonganj on 16.06.2010 when he did verification of treasury vouchers, but inadvertently he could not put his initial in the said verification which he was supposed to do. Also, inadvertently he submitted a leave application from 17.06.2010 to 24.06.2010, whereas he actually intended to seek leave from 12.06.2010 to 25.06.2010.

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Thereafter, a charge memorandum was issued to the applicant by order dated 04.08.2010 mentioning two articles of charges. Thereafter, enquiry officer submitted its finding on 19.07.2011and the disciplinary authority

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proceeded further for departmental enquiry and vide order dated 04.05.2012 inflicted punishment/ penalty upon petitioner by withholding one increment of pay for 1 year without cumulative effect.

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Against the punishment order dated 04.05.2012, the petitioner filed an appeal dated 17.05.2012 before the Appellate authority but, the appeal was dismissed vide order dated 02.05.2013. Thereafter, the petitioner preferred revision application dated 27.05.2012 before the Comptroller Auditor General of India but that also was rejected vide order dated 15.01.2015.

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Aggrieved with the orders passed by the authority, the petitioner preferred O.A. No.051/00247/2015 before the Learned Central Administrative Tribunal. The learned Central Administrative Tribunal, Circuit Bench, Ranchi considering the arguments advanced on behalf of the parties had dismissed the original application being O.A. No.051/00247/2015 vide order dated 06.07.2017.

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The aforesaid order is under challenge in this writ petition.

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Submission of the learned counsel for the petitioner:

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Mr. Mahesh Kr. Mehta, learned counsel for the petitioner has taken the following grounds:

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(i) It has been submitted that the learned Tribunal has failed to appreciate the fact that the enquiry officer even though has not found the charge proved but without assigning the reason, the order of punishment has been passed which is contrary to the law laid down by the Hon’ble Apex Court in the case of Punjab National Bank & Ors v. Kunj Behari Misra, [(1998) 7 SCC 84].

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(ii) It has been contended that the learned Tribunal has failed to appreciate the fact that the petitioner has been punished for being habitual offender though there was no charge for habitual offenders.

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It has also been contended that the enquiry officer had made recommendation that keeping in view the sudden illness of two daughters of the petitioner/applicant at Ranchi, the lapse of the petitioner may be considered in the light of the provisions of Para 3 of the O.O. dated 28.01.2010, if the disciplinary authority so pleases as the charge officer verbally intimated the party member of his departure on 12.06.2010 in extreme urgency.

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Learned counsel for the petitioner, based upon the aforesaid grounds, has submitted that all these facts since have not been taken into consideration by the learned Tribunal, as such, the impugned order suffers from error and needs to be interfered with.

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Submission of the learned counsel for the respondent:

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Per contra, Mr. Sudarshan Srivastava, learned counsel appearing for the respondents has taken the following grounds in defending the impugned order:

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(i) It has been submitted that the judgment rendered by the Hon’ble Supreme Court in the case of Punjab National Bank & Ors v. Kunj Behari Misra (supra) is not applicable in the facts and circumstances of the case reason being that the enquiry officer has not given finding that the charge is not being proved, as such, the said judgment is not applicable.

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(ii) So far as the issue of habitual offender which is being raised is concerned, it has been submitted that it is not the question of habitual offender rather the nature of misconduct committed by the writ petitioner as he has not been found at the place of inspection by the higher authority, as such, taking the lenient view the minor punishment has been inflicted.

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(iii) The learned Tribunal has taken into consideration the said fact by not interfering with the minor punishment otherwise the negligence in the discharge of duty by the member of audit team will be accelerated.

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Learned counsel for the respondents, based upon the aforesaid grounds has submitted that the order passed by the learned Tribunal, therefore, needs no interference.

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Analysis

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We have heard the learned counsel for the parties and gone through the finding recorded by the learned Tribunal in the impugned order.

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The fact which is not in dispute in the present case is that the petitioner while working as Senior Auditor in the office of Principal Accountant General (Audit) Ranchi, was deputed as a member of the Audit Team to conduct the audit of the office of the Superintendent, Sadar Hospital, Daltonganj, Palamu from 10.06.2010 to 17.06.2010. When the Deputy Accountant General (DAG in short) visited the office of the Superintendent, Sadar Hospital, Palamu on 17.06.2010 he found the applicant absent from duty from 12.06.2010 without any formal approval. When an explanation was sought from him, he submitted that he had to

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rush to Ranchi as he got information in the night of 11.06.2010 from his wife that both his daughters were ill. The applicant contends that he informed the party-in-charge S. Prajapati verbally before leaving the Station. The applicant further contends that he came back to Daltonganj on 16.06.2010 when he did verification of treasury vouchers, but inadvertently he could not put his initial in the said verification which he was supposed to do. Also, inadvertently he submitted a leave application from 17.06.2010 to 24.06.2010, whereas he actually intended to seek leave from 12.06.2010 to 25.06.2010.

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Thereafter, the applicant was issued a charge memorandum by order dated 04.08.2010 mentioning two articles of charges. Thereafter, vide order dated 19.07.2011 enquiry officer submitted its finding and the disciplinary authority proceeded further for departmental enquiry and vide order dated 04.05.2012 inflicted punishment/ penalty upon petitioner by withholding one increment of pay for 1 year without cumulative effect.

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Against the punishment order dated 04.05.2012, the petitioner filed an appeal dated 17.05.2012 before the Appellate authority but, the appeal was dismissed vide order dated 02.05.2013. Thereafter, the petitioner preferred revision application dated 27.05.2012 before the Comptroller Auditor General of India but that also was rejected vide order dated 15.01.2015.

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Aggrieved with the orders passed by the authority, the petitioner preferred O.A. No.051/00247/2015 before the Learned Central Administrative Tribunal. The learned Central Administrative Tribunal, Circuit Bench, Ranchi considering the arguments advanced on behalf of the parties had

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dismissed the original application being O.A. No.051/00247/2015 vide order dated 06.07.2017 on the following reasons:

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“ 12. In case of emergency in family the government systems are very liberal. Had the applicant really informed the team leader, i.e. AAO orally about the emergency, it does not stand to reason that he would not tell the DAG during his visit on 17.06.2010. It is also routine practice that if a senior officer finds some one absent during inspection and he is informed of the same by other staff about the emergency, the officer invariably takes a liberal view. Since AAO did not inform the DAG about the applicant having orally informed him, the only conclusion is that he was not informed and the DAG was bound to conclude that it was a case of unauthorized absence.

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13. The applicant has been So inconsistent and contradictory in his stand that any prudent person will take inference against him. He claims that he came back to Daltonganj on 16.06.2010 and did some verification in the Treasury but he forgot to put his initials. Then he submitted an application of leave on plain paper for leave from 17.06.2010 whereas his absence was from 12.06.2010. The reason again is inadvertent mistake. A series of such inadvertent and improbable mistakes would naturally create a doubt in the minds of the authorities about the applicant's faithfulness.

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14 . It is also noted that it was only after an explanation was asked from him that he submitted a formal leave application on 28.06.2010 for the period 12.06.2010 to 25.06.2010. This would also raise a doubt that had the applicant was not caught during the DAG's inspection the applicant would have quietly been absent altogether from his deputation duty.

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15. Based on the totality of facts as mentioned above, we do not find any illegality or any gross injustice in the conduct of the respondent authorities warranting our interference. It is well acknowledged that the scope of judicial review in disciplinary proceeding is very limited to illegality or perverse finding and grossly disproportionate punishment. Accordingly, the applicant's prayer in paras 8 (i), 8 (ii) and 8 (iii) are rejected.

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16. As far as the relief claimed at 8(iv) is concerned for grant of promotion, it would be governed in accordance with the relevant circulars with regard to impact of a penalty of withholding of one increment of pay for one year without cumulative effect on promotion. The respondents would accordingly consider the prayer of the applicant as per rules.

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17. Since the applicant has been held guilty and imposed penalty for the period of unauthorized absence, treating the period as dies non and not paying the salary for that period is a natural consequence of the punishment order. The respondent authorities have already explained that this does not amount to break in service. Therefore, relief in para 8 (v) and 8 (vi) are rejected.

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18. In view of the aforesaid observations, the OA is dismissed. No order as to costs.”

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At this juncture it requires to refer herein that since this Court is exercising the power conferred under Article 226 of the Constitution of India which is by way of power of judicial review upon the order passed by the learned Tribunal as per the law laid down by the Hon’ble Apex Court in the case of L. Chandra Kumar vs. Union of India and Ors., (1997) 3 SCC 261 .

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The power which is to be exercised as per the position of law is to look into the legality and propriety of the order passed by the learned Tribunal only in a case error apparent on the face of the order or in a case of perversity of finding in exercise of power conferred under the power of judicial review as has been held by the Hon’ble Apex Court at paragraph99 in the aforesaid judgment. The said paragraph is being referred as under:

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“ 99. In view of the reasoning adopted by us, we hold that clause 2(d) of Article 323-A and clause 3(d) of Article 323-B, to the extent they exclude the jurisdiction of the High Courts and the Supreme Court under Articles 226/227 and 32 of the Constitution, are unconstitutional. Section 28 of the Act and the “exclusion of jurisdiction” clauses in all other legislations enacted under the aegis of Articles 323-A and 323-B would, to the same extent, be unconstitutional. The jurisdiction conferred upon the High Courts under Articles 226/227 and upon the Supreme Court under Article 32 of the Constitution is a part of the inviolable basic structure of our Constitution. While this jurisdiction cannot be ousted, other courts and Tribunals may perform a supplemental role in discharging the powers conferred by Articles 226/227 and 32 of the Constitution. The Tribunals

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created under Article 323-A and Article 323- B of the Constitution are possessed of the competence to test the constitutional validity of statutory provisions and rules. All decisions of these Tribunals will, however, be subject to scrutiny before a Division Bench of the High Court within whose jurisdiction the Tribunal concerned falls. The Tribunals will, nevertheless, continue to act like courts of first instance in respect of the areas of law for which they have been constituted. It will not, therefore, be open for litigants to directly approach the High Courts even in cases where they question the vires of statutory legislations (except where the legislation which creates the particular Tribunal is challenged) by overlooking the jurisdiction of the Tribunal concerned. Section 5(6) of the Act is valid and constitutional and is to be interpreted in the manner we have indicated.”

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The power of judicial review has also been deliberated by the Hon'ble Apex Court, which is to be considered while exercising the said power only to the extent that if any order is being passed found to be having error on the face of the order or without jurisdiction or suffers from perversity. The error apparent on the face of the order means that if the order appears on its face having with error, then only the power of judicial review is to be exercised.

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The Hon'ble Apex Court in the case of West Bengal Central School Service Commission vs. Abdul Halim, (2019) 18 SCC 39, has held at paragraph-30 that the power of judicial review must be exercised by the Court after determining that the impugned order is vitiated by an error apparent on the face of the record and not the same has been established by a process of reasoning. Paragraph-30 of the aforesaid judgment is being referred as under:-

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“30. In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the record or whether the error requires examination or argument to

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establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale [Satyanarayan Laxminarayan Hegde v. Millikarjun Bhavanappa Tirumale, AIR 1960 SC 137] . ---."

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29.In the case of T.C. Basappa vs. T. Nagappa and Anr., (1955) 1 SCR 250, their Lordship have held that the patent error in a decision can be corrected by writ of certiorari, when it is manifested by the error apparent on the face of the proceedings. The relevant portion of the aforesaid judgment is quoted hereunder:

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"11. ... An error in the decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceedings e.g. when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision. ...."

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30.Thus, on the basis of the aforesaid settled legal position it is evident that the power of judicial review can be exercised, if error on the face of the order impugned, challenged under the Article 226 of Constitution of India, appears to be there.

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So far as the argument advanced about the applicability of the judgment rendered by the Hon’ble Apex Court in the case of Punjab National Bank & Ors v. Kunj Behari Misra (supra) is concerned, this Court being conscious with the fact that what is the course if the enquiry officer has found the charge not proved as available in paragraph-19 of the aforesaid

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judgment which is being referred hereinbelow:

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“ 19. The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof,

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whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.”

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This Court, in order to examine the applicability of the aforesaid judgment has gone through the enquiry report and has found therefrom that the enquiry officer has not given any specific finding of charge not being proved rather the enquiry officer has given the finding that keeping in view the sudden illness of the two daughters of the petitioner/applicant at Ranchi, the lapse of the petitioner may be considered in the light of the provisions of Para 3 of the O.O. dated 28.01.2010, if the disciplinary authority so pleases as the charge officer verbally intimated the party member of his departure on 12.06.2010 in extreme urgency.

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The difference of opinion only in a case if the enquiry officer has found the charge not proved but as would be evident from the enquiry report, there is no conclusive finding of charge being not proved rather different suggestion has been given by stating that the matter should be considered keeping in view the sudden illness to two daughters of the petitioner/applicant at Ranchi and further the lapse of the petitioner may be considered in the light of the provisions of Para 3 of the O.O. dated 28.01.2010 as the charge officer verbally intimated the party member of his departure on 12.06.2010 in extreme urgency.

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Thus, in view of the aforesaid circumstances it is considered view of this Court that the judgment rendered in the case of Punjab National Bank & Ors v. Kunj Behari Misra (supra) is not applicable herein.

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Second ground which has been agitated on behalf of the petitioner that the writ petitioner was not habitual, as such, lenient view was to be taken.

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This Court is of the view that the habitual is not having much bearing in a case of misconduct rather its bearing is only on the quantum of punishment.

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If the misconduct has been found to be substantiated as available in the enquiry report, however, no specific finding of charge being proved is there, but if the enquiry report will be taken into consideration then the enquiry officer has also come to the conclusion that there is dereliction in duty but considering the reason assigned by the delinquent employee, the lenient view has been recommended to be taken against the petitioner.

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The law is well settled that merely on the basis of an employee being not habitual it is not that the departmental proceeding will not be initiated rather in order to deal with such employees, even in a case no habitual misconduct, such employee is to be dealt with and only question would be that what would be the quantum of punishment.

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Herein, the quantum of punishment is minor by withholding increment for a year, as such, this Court is of the view that the respondent authorities have taken the lenient view while inflicting punishment.

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Further, the learned counsel for the petitioner has raised the contention that the second show cause notice has not been issued.

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It requires to refer herein the proposition that a non-issuance of a second show-cause notice (a notice issued after the inquiry report, proposing punishment) does not automatically vitiate a departmental inquiry and that the delinquent employee must instead prove that actual prejudice was caused.

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It is settled legal position that an order is required to be examined on the touchstone of doctrine of prejudice. A Constitution Bench of the Hon’ble Apex Court in ECIL v. B. Karunakar (1993) 4 SCC 727 considered the issue at length and after taking into consideration its earlier judgment in Union of India v. Mohd. Ramzan Khan (1991) 1 SCC 588 came to the conclusion that after hearing the parties, the Court/Tribunal comes to the conclusion that the non-supply of the report would have made no difference to the ultimate findings and the punishment given, the Court/Tribunal should not interfere with the order of punishment. It has further been observed that whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case. Therefore, even after the furnishing of the report, no different consequence would have followed, it would be a perversion of justice to permit the employee to resume duty and to get all the consequential benefits. It amounts to rewarding the dishonest and the guilty and thus to stretching the concept of justice to illogical and exasperating limits. It amounts to an “unnatural expansion of natural justice” which in itself is antithetical to justice.

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Herein, no such pleading has been taken by the petitioner that how due to non-issuance of second show cause notice, the same has prejudiced the

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petitioner. Moreover, the nature of punishment is minor, as such, nonissuance of second show cause notice cannot be said to have prejudiced the case of the petitioner.

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This Court, considering the entirety of facts and circumstances as referred hereinabove, is of the view that the order impugned needs no interference.

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