Dismissed

Y.K.Suryanarayana, v. The Additional Divisional Railway Manager

Telangana HC19 Feb 2014WP/16622/2012

Case brief

AI extract

What is this about?

A bench dismissed a writ petition challenging a compulsory retirement order under Article 226. The court held the disciplinary authority was competent, found the punishment not arbitrary or shockingly disproportionate given the lack of accounting for excess cash, and rejected claims for parity with other officers.

What did the court decide?

Writ petition dismissed; no order as to costs; miscellaneous petitions closed.

Y.K.Suryanarayana, Vs The Additional Divisional… — Service and Employment | Telangana HC (2014)

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THE HON'BLE SRI JUSTICE K.C.BHANU AND

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THE HON’BLE MRS JUSTICE ANIS

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WRIT PETITION No.16622 OF 2012

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ORDER:- (per Hon’ble Sri Justice K.C.Bhanu)

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This writ petition is filed seeking to issue writ of Certiorari calling for the records relating to order, dated 13.3.2012, in O.A.No.497 of 2010 on the file of the Central Administrative Tribunal, Hyderabad Bench, Hyderabad (for short, “the Tribunal”) and set aside the same.

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2. Petitioner herein/applicant was appointed in the year 1983 as Junior Clerk in BZA Division on compassionate grounds and later, on mutual transfer, came to GTL Division. Later, the applicant opted for change of category and became TC and subsequently, he was promoted as Senior TTE. While working as Sr.TTE/SL/GTL, the applicant was involved in Central Bureau of Investigation (C.B.I.) trap on 23.7.1999 for which a charge memo, dated 5.9.2000, was served on him with two charges. The first charge against him is that while he was working as Senior TTE of Train No.288 Bellary-Tirupathi (Meter gauge) passenger on 23.7.1999, demanded and accepted an amount of Rs.16/- by way of illegal gratification for providing two berths in sleeper class in S-6 coach from Deva Prasad and Bashoo Saheb, passengers travelling from Anantapur to Tirupathi with two second class original general tickets bearing Nos.26712 and 26713 respectively and thus, committed a grave misconduct. The second charge framed against him is that on the same day, he was found in possession of unaccounted excess cash of Rs.416/- and thereby, committed a grave misconduct. While submitting his explanation to the charge memo on 13.9.2000 to the Divisional Commercial Manager, Guntakal, who is the disciplinary authority, applicant requested the

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authorities to supply the documents relied upon in the charge sheet. He attended the enquiry on 17.11.2000. In spite of making representations, the authorities did not supply the documents. So, he filed O.A.No.1857 of 2000 before the Tribunal and the same was disposed of on 23.10.2002 directing the respondents to furnish a copy of report of CBI to the applicant. Later, he filed O.A.No.1168 of 2004 for quashing the charge memo, dated 5.9.2000 and the same was disposed of on 25.11.2004 directing the respondents to complete the disciplinary proceedings within a period of three months from the date of communication of the order failing which the proceedings would be deemed to have been dropped. But, the enquiry could not be completed within the stipulated time and the respondents filed M.A.No.322 of 2005 explaining the difficulties for non-compliance of the orders of the Tribunal. The Tribunal dismissed the same and held that the proceedings were deemed to have been dropped and there was no ground to grant any further time for implementing the orders. Questioning the same, respondents filed W.P.No.16424 of 2006 before this Court and this Court suspended the orders in M.A.No.322 of 2005. The Inquiry officer conducted inquiry by examining Deva Prasad and Bashoo Saheb along with V.Laxminarayana, but they did not turn up for the inquiry even after receiving the notice for over ten sittings. The inquiry officer, in consultation with the disciplinary authority, decided to drop the names of Deva Prasad and Bashoo Saheb along with V.Laxminarayana from the list of witnesses and submitted his report holding that article -I cannot be held as proved as there was no evidence and article – II as proved. The disciplinary authority made available a copy of the inquiry report to the applicant on 12.2.2009 and sought for his representation. Applicant submitted his representation on 23.2.2009 contending that the charges under article-II also cannot be held as proved and therefore, submitted that the findings of the inquiry officer are not based upon any evidence adduced during the inquiry proceedings and are illegal. After one year, on 1.3.2010,

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respondent No.2 passed the order imposing the penalty of ‘compulsory retirement’ on the applicant for possession of excess amount. The convincing reason given by the applicant for possession of excess cash was that Rs.300/- was given to him by his friend to get copies of ready reckoner published by Wings Publication from Tirupathi and that the tainted note of Rs.100/- was also included in the cash for which a receipt was already given, but the same was not considered. In similar circumstances, for identical charges, when the penalty imposed is only minor in nature in other cases and when in the same division, the predecessor of respondent No.1 imposed minor penalty for proved charges of accepting bribe, imposing a capital penalty of ‘compulsory retirement’ on applicant is harsh and disproportionate. Hence, he filed the aforementioned Original Application before the Tribunal.

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3. The Tribunal, upon considering the material on record, came to a conclusion that the applicant himself admitted that he was in possession of Rs.300/- excess cash and therefore, it is not a case where there was no evidence in the enquiry and accordingly, dismissed the Original Application.

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4. Learned counsel for the petitioner/applicant raised the following grounds to attack the order of the disciplinary authority viz., 1) the disciplinary authority is not competent to impose punishment 2) the delinquent was not examined properly after conclusion of the evidence 3) the punishment is disproportionate to the proved misconduct and 4) the finding of the enquiry officer is perverse, as the defence has not been taken into consideration, and hence, prays to set aside the impugned order.

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5. Law is well settled that it is for the disciplinary authority to impose an appropriate punishment. Ordinarily, Courts will not interfere with the imposition of punishment unless it is shown that there is no evidence for the enquiry officer to conclude with regard to proving of

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the charges. This Court cannot sit over as in an appeal to reappreciate the evidence adduced before the enquiry officer. Adequacy or insufficiency of the evidence cannot be a ground to challenge the proceedings of the disciplinary authority. Unless it is shown that it is a case of no evidence, then only, interference is called for. If the enquiry officer gave a perverse finding or the findings are not based upon any evidence, then only, the interference is called for. When the enquiry was conducted in accordance with law and there are no serious irregularities committed during the course of enquiry, normally, the order of enquiry officer needs no interference.

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6. In respect of article No.1, as there was no evidence, the applicant was found not guilty of that charge. In respect of article No.II, he was found with excess cash of Rs.300/-, which is not accounted for. The documents – Exs.P-4 and P-7 filed before the Tribunal would go to show that he was found in the excess cash of Rs.416/-, which is based upon the documents. Therefore, it cannot be said that there is no evidence at all.

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7. With regard to the first contention raised by the learned counsel for the petitioner that the disciplinary authority is not competent to impose a penalty because he is lower in rank than the appointing authority, who appointed the petitioner. Though initially, the petitioner was appointed by the orders of the Chief Engineer (Construction), the disciplinary authority is the Senior Divisional Commercial Manager. Even the counsel for the petitioner admitted that as per the rules, the disciplinary authority of an employee like the petitioner is the Senior Divisional Commercial Manager. So, once an employee is recruited or appointed, his service conditions are governed by the terms and conditions in the agreement or the rules, which are prevailing at the time of committing of misconduct. So, in such view of the matter, the contention of the learned counsel for the petitioner that the Chief Engineer (Construction) alone is competent to impose penalty cannot

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be accepted. It is wholly untenable and devoid of merit.

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8. The second contention raised by the learned counsel for the petitioner is that as per the rules, the petitioner has to be examined with regard to the material available on record by putting independent questions, but only one question was put to him, and so, it is not a proper examination. The whole object of examining the delinquent officer, after closure of the evidence of the department, is to enable him to give a proper explanation. Unless it is shown that for not putting separate questions, his case is prejudiced and there is some irregularity in examining the delinquent officer, it cannot by itself be a ground to throw away the entire enquiry report.

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9. Learned counsel for the petitioner placed reliance on a decision

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reported in Moni Shankar v. Union of India and anothe r^[1] wherein it is held at para No.18 as under:

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“The enquiry officer had put the following questions to the appellant: "Having heard all the PWs, please state if you plead guilty? Please state if you require any additional documents/witness in your defence at this stage? Do you wish to submit your oral defence or written defence brief? Are you satisfied with the enquiry proceedings and can I conclude the Enquiry?"

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That plea has not been taken either in the Original Application or before this Court. He should have raised an objection before the enquiry officer for not properly examining him. Unless it is shown that due to non-examination, his case got prejudiced, such a plea cannot be accepted at this point of time.

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10. The third contention raised by the learned counsel for the petitioner is that the plea of defence of the applicant has not been considered by the enquiry officer. It is a case where the applicant himself admitted that he was found in excess cash of Rs.300/-. Before starting the journey, he is bound to give the cash particulars, but he failed to do so. Mere plea or explanation during the course of enquiry

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proceedings does not amount to evidence. If the delinquent officer wants to adduce any evidence, he can as well produce those witnesses from whom he had taken that amount, to show that he took that amount not towards any illegal gratification but only to purchase books for his friend. So, in the absence of such evidence, there is no need for the enquiry officer to consider the plea of the accused.

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11. Coming to the last point raised by the learned counsel for the petitioner as to whether the proved misconduct is disproportionate to the punishment imposed or not, learned counsel for the petitioner placed reliance on a decision reported in State of U.P. v. Raj Pal Singh^[2] wherein it is held as under:

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"The High Court came to the conclusion that the charges and the delinquency being same and identical, and all the employees having been served with a set of charges out of the same incident, there was no justifiable reason to pass different orders (sic) of dismissal cannot be sustained. The High Court consequently set aside the order of dismissal and directed stoppage of five increments in case of the respondent as was the order in case of some other Assistant Warders.”

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In the above case, the charges levelled against the delinquent officers and the evidence adduced therein are one and the same. But, in the present case, the petitioner is seeking parity with regard to the punishment imposed to one V. Venkateswarlu, R. Somasekhar and M. Srinivasulu. Admittedly, they were not involved in this enquiry. If they are co-delinquent officers along with the present petitioner, certainly, the punishment should be equal to all. Therefore, the above decision has no application to the facts of the present case on hand.

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12. Law with regard to imposition of punishment in a departmental enquiry is very clearly stated by the Hon’ble Supreme Court in State of Andhra Pradesh and others v. S.Sree Rama Rao^[3] wherein it is held at para No.7 as follows:

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“There is no warrant for the view expressed by the High Court that in considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied, and if that rule be not applied, the High Court in a petition under Article 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 of the Constitution.”

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13. Similarly, if the Wednesbury principle is violated, then only, the Court is entitled to interfere with the sentence. The same has been stated by the Hon’ble Supreme Court in Om Kumar and others v.

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Union of India^[4] wherein it is held at para No.71 as under:

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“Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as “arbitrary” under Article 14, the court is confined to Wednesbury principles as a secondary reviewing authority. The court will not apply proportionality as a primary reviewing court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the courts,

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and such extreme or rare cases can the court substitute its own view as to the quantum of punishment.”

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14. So, from the above decision, it is clear that if the punishment shocks the conscience of the Court, then only, it needs interference. Being an employee in the Railways, the petitioner cannot take any amount or excess amount what ought to have been reflected in the concerned book before assuming the duty. But for the detection of the C.B.I., this would have been undetected, causing severe loss to the department. So, a reasonable inference that can be drawn from the facts of the case is that the petitioner collected the amount unlawfully. Therefore, the punishment does not shock the conscience of the Court with regard to the proved misconduct.

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15. Learned counsel for the petitioner placed reliance on a decision reported in ESI Corporation, Hyd. V. B.L.Narasimham and

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anothe r^[5] with regard to jurisdiction wherein it is held at para No.12 as under:

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"In Sohan Singh v. G.M., Ordinance Factory, Khamaria, AIR 1981 SC 1862, it has been held that when a question of jurisdiction had not been taken at the first instance the same may not be permitted to be raised subsequently. The apex Court observed thus:

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“The High Court seems to have taken the view that the trial of such an issue was beyond the competence of the labour Court; but it has rightly been pointed out on behalf of the appellants that instead of challenging the competence of the jurisdiction of the labour Court to try issue No.4, the respondents went to trial, submitted to its jurisdiction and when a decision was given against them by the labour Court they, for the first time, challenged its jurisdiction to try that issue in the High Court. On the facts of this case, therefore, we are satisfied that the High Court ought not to have entertained the point of jurisdiction urged on behalf of the respondents and set aside the order of the labour court on that ground alone.”

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16. Learned counsel for the petitioner placed reliance on a decision reported in Union of India (UOI) v. P.C.Choudhury^[6] wherein it is held at para No.19 as under:

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"It now remains to be considered if the clause ‘whichever authority is

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the highest authority’ applies to all cases of Clause (a) of Sub-rule (i) of Rule 2. Mr. Banerjee relied on Sub-clause (ii) contending that it connotes the only authority empowered to make the appointment to the post which the Railway servant for the time being holds as the appointing authority. The other Clause (i) connotes such authority to be the authority which makes appointment to the service (here Class III) or the grade. The Sub-clause (iii) connotes such authority to be any authority which makes appointments to such service, grade or post. The sub-clause refers to a permanent servant of the Railways holding an employment in the Ministry. In this context the sub-clause ‘whichever authority is the highest authority’ applies with all force to all the Sub-clauses (i), (ii), (iii) and (iv) thereby providing that of the authorities making appointments of Railway servant to the service, grade or post, the highest authority among them shall be the appointing authority. Unless this was the position, there is no sense in making the appointing authority to be one who makes appointments to the service or grade or post for the time being held by the Railway servant providing further that the highest of such authorities shall be the authority for disciplinary proceeding. In this view of the matter, the Chief Electrical Engineer would be the proper appointing authority as being the highest authority of the authorities appointing delinquent to the service, grade or post for the time being held by him to issue orders dispensing with the inquiry and ultimately the order of removal from service. The impugned order dispensing with the inquiry and the removal from service of the Respondent No.1 by an authority below the highest of such authorities, the Chief Electrical Engineer must, accordingly, be held to be unsustainable.”

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There cannot be any dispute that once a person is appointed to any post, he should be governed by the rules, which are prevailing as on the date of commission of the misconduct. Therefore, as on the date of committing misconduct, the rules would clearly go to show that the Senior Divisional Commercial Manager is the competent authority. That aspect has not been in dispute. Therefore, we do not find any ground to interfere with the order of the Tribunal. The writ petition is devoid of merits and is liable to be dismissed.

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17. Accordingly, the Writ Petition is dismissed. There shall be no order as to costs. Miscellaneous petitions, if any, pending in this Writ Petition shall stand closed.

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______________________ JUSTICE K.C.BHANU

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_______________ JUSTICE ANIS

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Date: 19.02.2014 AMD

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THE HON'BLE SRI JUSTICE K.C.BHANU AND

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THE HON’BLE MRS JUSTICE ANIS

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WRIT PETITION No.16622 OF 2012