S.G. Chattopadhyay, J.
1. Since both the petitions are arising from the same order and relieves sought for are also identical, they are clustered together for disposal by a common judgment.
2. The factual background of the case is a under:
While the petitioners were working as Junior Telecom Officers (JTO) in Bharat Sanchar Nigam Limited (BSNL) at its Aizwal office in Mizoram, disciplinary proceedings were drawn up against them for misconduct. Such proceedings against them were conducted separately. Though Inquiry Officer held that charges of misconduct were not proved against them, the Disciplinary Authority disagreed with the decision of the inquiry officer and after providing to them opportunity of making representation, imposed penalty on them reducing their pay by two stages in the time scale of pay for a period of 02(two) years with immediate effect and in the said penalty order it was further directed that petitioners would not be entitled to any increment of pay during the period of reduction and on the expiry of the said period, such reduction of pay would have the effect of postponing their future increments of pay.
3. Both the petitioners challenged the said order of the disciplinary authority in departmental appeal by filing separate appeals to the Secretary, Department of Telecommunication and Chairman, Telecom Commission, New Delhi. The appellate authority, by two separate orders dated 07.04.2012 dismissed their appeals. Aggrieved petitioners challenged the said order of the departmental authority by filing separate applications before the Central Administrative Tribunal (the Tribunal, hereunder) at Guwahati under Section 19 of the Administrative Tribunals Act, 1985 which were also dismissed by the Tribunal by a common order dated 27.09.2016.
4. By means of filing these writ petitions, the petitioners have laid challenge to the order of the Tribunal as well as the orders passed by the Disciplinary Authority and the Departmental Appellate Authority.
5. Since the disciplinary proceedings against the petitioners were held separately under separate memo, it would be appropriate to the refer to the individual facts of those petitions which are as under:
Facts of WP(C)(CAT)04 of 2017
By a memorandum under No. NE-VIG/KBS-CBI/Pt. II/2004/5 dated Shillong, 02nd December, 2006, petitioner A.R.Biswas, Junior Telecom Officer, was imputed by the Chief General Manager, N.E.I.Telecom Circle, Shillong(Disciplinary Authority) on the charge of misconduct and it was proposed in the said memorandum that departmental proceedings under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules,1965,(for short CCS(CCA) Rules would be carried out against him on the following charge:
“Article of charge
That the said Shri A.R.Biswas, while functioning as JTO, Aizwal, under SDOT, Aizwal in Mizoram during the year 1996-97, 1997-98 was entrusted with supervising the execution of Overhead Cable Laying work for Aizwal twon. Shri A.R.Biswas, neither maintained measurement book (M.B) nor maintained day to day measurement of the overhead cable laid. The said work is carried out by Shri K.Sena, Proprieter, M/s Southern Repairing Work, Aizwal. Shri K.Sena submitted 95 Nos. of bills amounting to Rs.291880/-(only for cable laying) against the execution of overhead cable laying. Shri A.R.Biswas certified the aforesaid bills but did not endorse the measurement particulars of the cable laid in the bills as required by rules and submitted to Shri K.B.Shome, the then SDOT, Aiwal for passing. Similarly Shri K.Sena, submitted 19 Nos. of bills amounting to Rs.65635/-(only for cable laying) against the aforesaid work. Shri A.R.Biswas, also certified the 19 Nos. of bills without endorsing measurement particulars of the cable laid in the bills and submitted to Shri S.Debroy, the then SDOT, Aizwal for passing.
The certification of the Cable laying works without maintaining the MB (measurement book) and not submitting the measurement particulars of overhead cable laid along with the bills, the official has misuse the official position with malafide intention to give undue pecuniary advantage to the firm.
2.Thus by this above act, the said A.R.Biswas, committed grave misconduct and fail to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Govt. servant, thereby contravening the provisions of Rule3(I)(i)(ii)(iii) of CCS(Conduct)Rules, 1964.”
6. The statement of imputation of misconduct and misbehavior in support of the said article of charge was placed as well by the said memorandum dated 02.12.2006 and the memorandum along with its enclosures was communicated to the petitioner asking him to submit his written statement of defence within 10 days.
7. Manifestly, the charge crystallized that while the petitioner was entrusted with the supervision of the execution of overhead cable laying work in Aizwal town area, he did not maintain any measurement book for recording the measurement particulars of the work including the length of cable laid and eventually, he certified the bills of the contractor without any measurement record and thereby facilitated undue pecuniary advantage to the contractor. Thus, it was imputed that the petitioner had failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a govt. servant which amounted to violation of Rule3 (I)(i)(ii)(iii) of CCS(Conduct)Rules, 1964.
8. The petitioner denied the said charge by filing his written statement of defence on 02.01.2007[Annexure-2]. Since the Disciplinary Authority was not convinced by his defence, disciplinary proceedings continued against him. Shri S.N.Barua, D.E.(Marketing) was appointed as Inquiry officer to hold the inquiry against the petitioner. After holding a full-fledged enquiry, the said inquiry officer had drawn up report on the basis of the oral and documentary evidence adduced on behalf of the parties and held that charge against the petitioner was not proved. It was observed by the Inquiry Officer that though as per guidelines provided in P&T Financial Handbook in Vol.III Part-1, a Measurement Book was required to be maintained by the petitioner under whose supervision the work was carried out, no objection was actually raised by the bill sanctioning authority on this ground and bills of the contractor were sanctioned and paid. The Inquiry Officer held that there was no practice of maintaining Measurement Book at Aizwal. Moreover, the bill sanctioning authority had full knowledge of the work done and the length of cable laid by the contractor and accordingly the bill sanctioning authority passed the said bills without looking for the Measurement Book. It was further held by the Inquiry Officer that no Measurement Book was actually required for the said work since the petitioner certified on the bills the length of overhead cable actually laid, specifying the places between which such cables were laid. The relevant extract of the inquiry report is as under:
“From the above discussion it is clear that in this case of O/H cable laying work, the certification specifying the places between which cable laid and the length of the cable laid by Sri A.R.Biswas cannot be termed as a lapse on his part.
In addition to the above, it is also a fact that there was no practice of maintenance of M.B. in Aizwal in those days. This is confirmed by Defence witness Sri K.B.Some the then SDOT/ Aizwal in reply to Q.No.5 during Examination in chief. The Defence Witness also confirmed that no instructions were issued. The bills certified by Sri A.R.Biswas, the Charged officer were duly passed and paid by the SDOT/Aizwal himself who never insisted nor directed for maintenance of M.B for such works. Even the higher authority or accounts personal ever insisted for that. This fact is confirmed by the Defence witness Sri K.B.Some, the then SDOT/Aizwal, in reply to Q.No.6 during Examination-in-chief. So, it is confirmed that there was no instruction or directive to maintain MB. for such work. Thus, it is crystal clear that there was no violation of procedure as per provisions of F.H.B.
Now, coming to the analysis of facts and circumstances of the case, it can be seen that the bills were certified by Sri A.R.Biswas and forwarded to his superior officer i.e. SDOT/Aizwal who made payments to the party and charged in his A.C.E-2 Account. The A.C.E.-2 Accounts of SDOT were forwarded to the TDM/Aizwal who passed the accounts after thorough scrutiny by the accounts personnel. None of the bills were objected for not enclosing M/B records while scrutinizing before passing the accounts. This clearly indicates that such “Non-submission of Measurement Book” was not considered as irregularity and the superior officers as well as Accounts section of TDM/Aizwal were satisfied with the works of O/H cable and procedure of payment of bills thereof etc.It is very suprising that after A.C.E-2 bills are scrutinized and passed by the competent authority and adjusted with temporary advance drawn by the SDOT/Aizwal, a J.T.O is being charged for Non-maintenance and non-submission of “Measurement Book”. It is therefore obvious that practice of maintenance of M.B was not followed at Aizwal and Sri A.R.Biswas, the charged officer, acted as per the practice and this practice was approved by all. Thus, it is clear that the Charged officer followed the Rules and procedure approved by the authority at Aizwal and so the charges of violating the procedures are not based on facts.
If we further analyze the spirit of farming Rules, it can be seen that Rules were framed to make the procedure simple and to arrest irregularity / lapse. In the instant case, the maintenance of M.B. was substituted by proper certificates on the body of the bills & this very well served the purpose of MB. Therefore cannot be termed as volition of Rules, & no motive can be attributed behind such action.
Now, discussing the brief of P.O Para wise, it is observed that the prosecution has not tried to analyze the case in detail and in the light of the circumstances prevailing there during that time. The C.O did not maintain the MB.but he substituted that with proper certificates and this fact was endorsed by on and all including Accounts/Audit etc. The prosecution could not visualize the fact that Rules are not to be followed true to the letter only but true to the spirit also. The C.O. followed the Rules in true spirit and therefore charges ae not tenable.
From the above analysis it is crystal clear that the C.O acted in a way which did not cause any pecuniary advantage to M/s Southern Repairing works, Aizwal.
From the documentary and oral evidence adduced before me and the reasons given above, I hold that all the charges detailed in the charge sheet vide memo no.N.E.-VIG/KBS-CBI/PT-II/2004/5 dated at Shillong, the 2nd Dec.2006 against Sri A.R.Biswas are not proved.”
9. As noted, the Disciplinary Authority did not concur with the findings of the Inquiry Officer. By memorandum under No.8-29/2009. Vig.-II dated 23.06.2009[Annexure-4], the disciplinary authority communicated to the petitioner its disagreement with the said inquiry report and petitioner was asked to submit his representation within 15 days from the date of receipt of such communication. Accordingly, petitioner submitted his representation on 23.07.2009 [Annexure-5 to the Writ Petition] pleading that he mentioned on the bills, the length of cable actually laid and the places between which such cables were laid. The bill sanctioning authority then sanctioned those bills without raising any objection and moreover, the practice of certifying such bills without maintaining measurement book was in vogue for long in Aizwal.
10. The disciplinary authority further examined the inquiry report and considered the representation of the petitioner and passed order dated 28.01.2010 under No.8-29/2009.Vig-II[Annexure-6 to the Writ Petition] imposing penalty on the petitioner which is extracted as under:
“3.The Inquiry Officer submitted his Inquiry Report on 27.10.2008, holding the charge as not proved. The Disciplinary Authority of DOT issued disagreement memo to the Charged Officer disagreeing with the I.O. report to the following extent:
“As per the procedure being following in all the Circles, maintenance of Measurement Book(MB) is a must for approval and payment of bills. But the C.O. failed to maintain the Measurement Book and not submitted the measurement particular of overhead cable laid alongwith the bills. Hence, Shri A.R.Biswas, JTO, has committed the irregularity and the charges levelled against him are fully proved”
4. The representation dated 29.07.2009 submitted by charged officer has been duly considered. As per procedure or Rule 178-A & Rule83 of P&T Financial Handbook Vol-III Part-1 Engineering, already mentioned in Annexure-III(i.e. list of documents) of the charge sheet dated 02.12.2006, the maintenance of Measurement Book(MB) is a must. Reply of Charged Officer is not convincing and thus not accepted. Thus, Shri A.R.Biswas, the then JTO now SDE, has committed the irregularity punishable under Rule 14 of CCS(CCA) Rules, 1965 by not following the procedure of the said rule.
5. Taking into account the findings of the inquiry authority, the records of the case and on an objective assessment of the facts and overall circumstances of the case in its entirety, I, V.K.Shukla, Member(Services), Telecom Commission, hereby impose the penalty of reduction of pay by two stages in the time scale of pay for a period of two years with immediate effect on Shri A.R.Biswas, SDE, (unabsorbed in BSNL) North-East-I Telecom Circle, Shillong. It is further directed that Shri A.R.Biswas, SDE, will not earn increment of pay during the period of such reduction and on expiry of this period the reduction will have the effect of postponing his future increment of pay.”
11. Against the said order of penalty, the petitioner filed departmental appeal before the Secretary, Department of Telecommunication and Chairman, Telecom Commission, New Delhi by filing memo of appeal dated 30.03.2010[Annexure-7] on the same plea.
12. The said Departmental Appellate Authority observed that the decision of the disciplinary authority was based on evidence which called for no interference in departmental appeal and accordingly the appeal of the petitioner was rejected by the departmental appellate authority observing as under:
“11.Taking into account the points raised by the Appellant, Shri A.R.Biswas, in his appeal, the records of the case and all other aspects relevant to the case, the President has accepted the advice of UPSC and decided to reject the Appeal, dated 30.03.2010 preferred by Shri A.R.Biswas, as the appeal is devoid of merit, and the penalty of ‘reduction of pay by two stages in the time scale of pay for a period of two years with immediate effect, with further direction that he will not earn increments of pay during the period of such reduction and on expiry of this period, the reduction will have the effect of postponing his future increments of pay’, imposed upon him by Member(Service), Telecom Commission, New Delhi, vide Order No.8-29/2009-Vig.II, dated 28.01.2010, is not excessive and is commensurate with the gravity of charges proved.”
13. Aggrieved by and dissatisfied with the said order of the departmental appellate authority, petitioner filed application under Section 19 of the Administrative Tribunals Act, 1985 before the Tribunal which was dismissed by the Tribunal vide judgment and order dated 27.09.2016 observing that disciplinary authority as well as the departmental appellate authority passed the orders after meticulous appreciation of evidence and full application of mind. The Tribunal also held that maintenance of measurement book by an officer supervising cable laying work was a must which was not followed by the petitioner. While dismissing the petitions by a common judgment, the Tribunal observed as under:
“21. As detailed above, the learned counsel for the respondents have extensively quoted the Apex Court judgments and has described in detail the limitation or judicial review in cases relating to the Disciplinary proceedings. In the light of the same this court does not find any merit in this case.
Accordingly, both the applications O.A.292 of 2014 & 294 of 2014 are dismissed as devoid of merits of law as well as the facts.
No order as to costs.”
14. Facts of WP(C)(CAT)No.5 of 2017.
By a memorandum under No.NE-VIG/KBS-CBI/Pt.II/ 2004/4 dated Shillong, 02nd December, 2006, petitioner Shyamal Dutta, Junior Telecom Officer, was imputed by the Chief General Manager, N.E.I.Telecom Circle, Shillong (Disciplinary Authority) on the same charge of misconduct and it was proposed under the said memorandum that departmental proceedings under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules,1965, (for short CCS(CCA) Rules would be carried out against him. Charge against the petitioner was as under:
“Article of charge
That the said Shri Shyamal Dutta, while functioning as JTO, Aizwal, under SDOT, Aizwal in Mizoram during the year 1996-97, 1997-98 was entrusted with supervising the execution of Overhead Cable Laying work for Aizwal town. Shri S.Dutta, neither maintained measurement book (M.B) nor maintained day to day measurement of the overhead cable laid. The said work is carried out by Shri K.Sena, Proprieter, M/s Southern Repairing Work, Aizwal. Shri K.Sena submitted 150 Nos. of bills amounting to Rs.5,31,200/-/-(only for cable laying) against the execution of overhead cable laying. Shri S.Dutta certified the aforesaid bills but did not endorse the measurement particulars of the cable laid in the bills as required by rules and submitted to Shri K.B.Shome, the then SDOT, Aiwal for passing. Similarly Shri K.Sena, submitted 37 Nos. of bills amounting to Rs.121350/-(only for cable laying) against the aforesaid work. Shri S.Dutta, also certified the 37 Nos. of bills without endorsing measurement particulars of the cable laid in the bills and submitted to Shri S.Debroy, the then SDOT, Aizwal for passing.
The certification of the Cable laying works without maintaining the MB (measurement book) and not submitting the measurement particulars of overhead cable laid along with the bills, the official has misused the official position with malafide intention to give undue pecuniary advantage to the firm.
2.Thus by this above act, the said S.Dutta, committed grave misconduct and failed to maintain absolute integrity and devotion to duty and acted in a manner unbecoming of a Govt. servant, thereby contravening the provisions of Rule3(I)(i)(ii)(iii) of CCS (Conduct) Rules, 1964.”
15. Rest of the facts is same. The petitioner denied the charge by filing written statement of defence. The same inquiry officer held a full-fledged inquiry and recorded similar findings in his report No.E-10/ARB/DE(Mktg)/AGT/08-09/B dated 29.10.2008 holding that the charge was not proved against the petitioner. But, the Disciplinary Authority disagreed with the report and imposed same penalty on the petitioner vide order dated 18.01.2010 after providing opportunity of representation to him. Against the said order of penalty, petitioner filed appeal before the departmental authority. The departmental authority dismissed his appeal vide order dated 21.05.2012. Aggrieved petitioner filed similar application under Section 19 of the Administrative Tribunals Act, 1985 before the Tribunal. As noted, by a common judgment dated 27.09.2016, the Tribunal dismissed his appeal.
16. In this back ground, aggrieved petitioners approached this court by means of filing these petitions claiming relieves as under:
(a) For quashing the departmental proceedings initiated against them.
(b)For quashing the penalty imposed by the Disciplinary Authority.
(c) For quashing the order of the Departmental Appellate Authority.
(d) and, for quashing the order of the Tribunal.
17. Heard Mr. C.S.Sinha, counsel appearing for the petitioners as well as Mr.B.Majumder, Assistant Solicitor General of India appearing for the respondents.
18. It was mainly contended by Mr.C.S.Sinha, counsel appearing for the petitioners that provisional penalty order was not communicated to the petitioners before issuing the final order dated 28.01.2010 imposing penalty for misconduct. Petitioners’ counsel argued that said act of the disciplinary authority amounted to gross violation of the principles of natural justice which was not considered by the departmental appellate authority or by the tribunal. It was further contended on behalf of the petitioners that decision of the inquiry officer was well founded and based on evidence which was discarded by the Disciplinary Authority without recording any reason and this was not considered by the Departmental Appellate Authority or the Tribunal. Learned counsel, submitted that the disciplinary proceedings against the petitioners were not countenanced by fair procedure and the charge of misconduct was not proved against them for which the order of penalty imposed by the disciplinary authority should be set aside.
19. Mr.B.Majumder, ASG, while opposing the contention of petitioners’ counsel quite emphatically submitted that the petitioners were given full opportunity of hearing in departmental proceedings before the penalty was imposed on them. They also availed opportunity of filing an appeal before the Departmental Appellate Authority. The Departmental Appellate Authority decided the appeal after providing full opportunity of hearing to them. Ultimately they filed application before the tribunal which was also decided by the tribunal by dismissing their applications by a detailed and reasoned order. It was contended by the ASG that High Court could exercise its limited jurisdiction to interfere with an order passed in a departmental proceeding only when it is proved to the satisfaction of the court that errors of law or procedural error has occurred resulting in manifest miscarriage of justice or violation of the principles of natural justice. According to Mr.Majumder, learned counsel, since the petitioners were penalized in departmental proceedings on the charge of misconduct in terms of the procedure prescribed by the relevant statute after providing full opportunity of hearing to them the said orders do not call for any interference by this court. As regards the impact of non-supply of the provisional punishment order, the counsel submitted that procedure prescribed under the relevant statute did not require supply of provisional order of penalty to the delinquent officer in departmental proceedings. Leaned counsel, therefore, urges the court for dismissing the petitions.
20. From the rival submissions, as projected before us, the following questions call for our consideration:
(i) Whether this court can re-evaluate the evidence to examine the correctness of the punishment imposed by the disciplinary authority.
(ii) Whether non supply of the provisional order of punishment, as alleged, can be treated as a procedural error resulting in manifest miscarriage of jsutice.
21. The Apex Court has examined the scope of judicial review in service matters in a catena of decisions. In State of Andhra Pradesh and Others vs. S. Sree Rama Rao reported in AIR 1963 SC 1723, the Apex Court has succinctly held that the High Court is not a court of appeal over the decision of the authority holding disciplinary proceedings against a public servant. Observation of the Apex Court in the said judgment is as under:
“7....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...... ”.
22. In the case of B.C.Chaturvedi vs. Union of India and others reported in (1995) 6 SCC 749:(AIR 1996 SC 484), the Apex Court held that in disciplinary proceedings when the conclusion arrived at by the disciplinary authority receives support from the evidence, the disciplinary authority can hold the charged officer guilty and the court / tribunal cannot sit over the decision of the disciplinary authority as an appellate authority to re-appreciate the evidence and arrive at its own findings on such evidence. In the said judgment the Apex Court observed as under:
“12. 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 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 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 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.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co- extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 718: AIR 1964 SC 364 (1964)1 LLJ 38], this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.”
23. Similarly, in State Bank of Bikaner and JaIpur Vs. Nemi Chand Nalwaya reported in (2011) 4 SCC 584: (AIR 2011 SC 1931) Apex Court held that question whether evidence against the charged officer was adequate or reliable in the departmental proceeding would not be a ground for interfering with the findings of the disciplinary authority if it is seen that enquiry has been fairly conducted and the findings are also based on evidence. Observation of the Apex Court is as under:
“7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. Courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations.”
24. In Union of India vs. P.Gunasekaran reported in (2015) 2 SCC 610 : (AIR 2015 SC 545), the Apex Court laid down the following parameters as to when the High Court shall not interfere with the orders passed in a disciplinary proceedings while exercising power under Article 226/227 of the Constitution:
“13. Under Article 226/227 of the Constitution of India, the High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience.”
25. Same ratio has been reiterated by the Apex Court in the case of Pravin Kumar vs. Union of India and Others reported in (2020) 9SCC 471 wherein the Apex Court held as under: “28. It is thus well settled that the Constitutional Courts while exercising their powers of judicial review would not assume the role of an appellate authority. Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice. Put differently, judicial review is not analogous to venturing into the merits of a case like an appellate authority.”
26. We have examined the case within the limits prescribed by the Apex Court in the judgments cited to supra. In the given context, the Disciplinary Authority imputed that the petitioners, while they were Junior Telecom Officers at Aizwal, certified the bills of the contractor without maintaining measurement book in violation of various statutory provisions provided in P&T, Financial Handbook in Vol-III, Part-1 and thereby gave undue pecuniary advantage to the contractor who executed cable lying work in Aizwal town and by such conduct petitioners failed to maintain absolute integrity , devotion to duty and acted in a manner which is unbecoming of a government servant. Since the said misconduct amounted to violation of sub-rule(1)(i),(ii) and (iii) of Rule 3 of the CCS(Conduct)Rules,1964, disciplinary action was proposed under Rule 14 of the CCS(CCA)Rules, 1965 against them. After holding a full-fledged inquiry, penalty, as aforesaid, was imposed on the petitioners by the Disciplinary Authority in exercise of power conferred under Rule11 (V) of the CCS(CCA) Rules, 1965.
27. On a bare perusal of the record, it would be apparent that the disciplinary authority after examining the whole evidence recorded by the Inquiry Officer disagreed with his findings. Said disagreement note of the Disciplinary Authority with a copy of the enquiry report was duly communicated to the petitioners before imposing penalty. Thereafter, the penalty was imposed after consideration of their written representation. In departmental appeal, the petitioners were given full opportunity of hearing. The Appellate Authority after re-evaluation of the entire evidence dismissed the appeal of the petitioners by a detailed order which was further challenged by the petitioners before the tribunal by filing application under Section 19 of the Administrative Tribunals Act. The tribunal found no wrong with the action taken by the disciplinary authority and relying on various decisions of the Apex Court the tribunal held that the disciplinary authority penalized the petitioners after holding proper enquiry and after proper application of mind and there was no procedural error or perversity in the action of the disciplinary authority.
28. It was no case of the petitioners that there was no statutory requirement of maintaining a measurement book or that they maintained proper measurement book to record the particulars of the length of cable laid by the contractors. Their defence before the Disciplinary Authority as well as before the Appellate Authority and also before the Tribunal was that there was no practice of maintaining measurement book at Aizwal and moreover, they certified the length of cable laid on the bills. According to them, since the bills were sanctioned by the bill sanctioning authority without raising any question, they had no liability. Neither the Disciplinary Authority nor the Departmental Appellate Authority accepted such defence. Such defence was also proved futile before the Tribunal.
29. In our view, petitioners cannot justify their action by saying that measurement book was not maintained by them as the practice of maintaining measurement book was not followed in Aizwal. Such defence was rightly discarded by the Disciplinary Authority as well as by the Departmental Appellate Authority and Tribunal since the petitioners could not show any statutory exemption in this regard for Aizwal. Their certificate on the contractor’s bill about the length of cable laid, cannot and should not substitute the measurement book. Rather, measurement book was necessary to back their certificate on the bills. Even the inquiry officer also held that maintenance of measurement book was a statutory requirement. Under these circumstances, we are of the view that the petitioners have failed to advance any valid point to counter the decision of the Disciplinary Authority nor they have been able to establish that the decision arrived at by the Disciplinary Authority is perverse or suffers from any patent error on the face of the record or not based on any evidence at all to call for interference by this court.
30. As regards the contention of the petitioners that non supply of the provisional penalty order amounted to violation of the principles of natural justice, this court is of the view that such contention is not acceptable for the following reasons.
31. Rule 15 of the CCS(CCA)Rules prescribes the procedure to be followed by the disciplinary authority after an enquiry under Rule 14 is held and the report of enquiry is submitted to the disciplinary authority. Sub-rule(4) of Rule 15 provides that where any of the penalties specified in clauses (v) to (ix) of Rule 11 is proposed to be imposed on the government servant it shall not be necessary to give the government servant any opportunity of making representation on the penalty proposed to be imposed. For proper appreciation of the facts and circumstances of the case it would be appropriate to reproduce Rule 15 of the CCS(CCA) Rules which is as under:
“15. Action on the inquiry report
(1) The Disciplinary Authority, if it is not itself the Inquiring Authority may, for reasons to be recorded by it in writing, remit the case to the Inquiring Authority for further inquiry and report and the Inquiring Authority shall thereupon proceed to hold the further inquiry according to the provisions of Rule 14, as far as may be.
(2) The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the disciplinary authority or where the disciplinary authority is not the inquiring authority, a copy of the report of the inquiring authority together with its own tentative reasons for disagreement, if any, with the findings of Inquiring Authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the disciplinary authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant.
(2-A) The Disciplinary Authority shall consider the representation, if any, submitted by the Government servant and record its findings before proceeding further in the matter as specified in sub-rules(3) and (4).
(3) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge is of the opinion that any of the penalties specified in Clauses (i) to (iv) of Rule 11 should be imposed on the Government servant, it shall, notwithstanding anything contained in rule 16, make an order imposing such penalty:
Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant.
(4) If the Disciplinary Authority having regard to its findings on all or any of the articles of charge and on the basis of the evidence adduced during the inquiry is of the opinion that any of the penalties specified in Clauses (v) to (ix) of Rule 11 should be imposed on the Government servant, it shall make an order imposing such penalty and it shall not be necessary to give the Government servant any opportunity of making representation on the penalty proposed to be imposed:
Provided that in every case where it is necessary to consult the Commission, the record of the inquiry shall be forwarded by the Disciplinary Authority to the Commission for its advice and such advice shall be taken into consideration before making any order imposing any penalty on the Government servant.”
32. With regard to the right of the delinquent officer to communication of the provisional penalty orders, the Apex Court in MANAGING DIRECTOR, ECIL, HYDERABAD AND OTEHRS VERSUS B.KARUNAKAR AND OTHERS reported in (1993) 4 SCC 727 held as under:
22. In Institute of Chartered Accountants of India v. L.K.Ratna, (1986) 4 SCC 537, Charan Lal Sahu v. Union of India, (1990)1SCC613(Bhopal Gas Leak Disaster case) and C.B.Gautam v.Union of India(1993)1 SCC 78 the doctrine that the principles of natural justice must be applied in the unoccupied interstices of the statute unless there is a clear mandate to the contrary, is reiterated.
Please Login To View The Full Judgment!
emerges from the above survey of the law on the subject is as follows: 24. Since the Government of India Act, 1935 till the Forty-second Amendment of the Constitution, the Government servant had always the right to receive the report of the enquiry officer/authority and to represent against the findings recorded in it when the enquiry officer/authority was not the disciplinary authority. This right was however, exercisable by him at the second stage of the disciplinary proceedings viz., when he was served with a notice to show cause against the proposed penalty. The issuance of the notice to show cause against the penalty necessarily required the furnishing of a copy of the enquiry officer's report since, as held by the Courts, the right to show cause against the penalty also implied the right to represent against the findings on the charges. This was considered to be an essential part of the ‘reasonable opportunity’ incorporated earlier in Section 240 (3) of the GOI Act and later in Article 311(2) of the Constitution as originally enacted. The right to receive the enquiry officer's report and to show cause against the findings in the report was independent of the right to show cause against the penalty proposed. The two rights came to be confused with each other because as the law stood prior to the 42nd Amendment of the Constitution, the two rights arose simultaneously only at the stage when a notice to show cause against the proposed penalty was issued. If the disciplinary authority after considering the enquiry officer's report had dropped the proceedings or had decided to impose a penalty other than that of dismissal, removal or reduction in rank, there was no occasion for issuance of the notice to show cause against the proposed penalty. In that case, the employee had neither the right to receive the report and represent against the finding of guilt nor the right to show cause against the proposed penalty. The right to receive the report and to represent against the findings recorded in it was thus inextricably connected with the acceptance of the report by the disciplinary authority and the nature of the penalty proposed. Since the 42nd Amendment of the Constitution dispensed with the issuance of the notice to show cause against the penalty proposed even if it was dismissal, removal or reduction in rank, some courts took the view that the Government servant was deprived of his right to represent against the findings of guilt as well. The error occurred on account of the failure to distinguish the two rights which were independent of each other. (emphasis supplied) 25. While the right to represent against the findings in the report is part of the reasonable opportunity available during the first stage of the inquiry viz., before the disciplinary authority takes into consideration the findings in the report, the right to show cause against the penalty proposed belongs to the second stage when the disciplinary authority has considered the findings in the report and has come to the conclusion with regard to the guilt of the employee and proposes to award penalty on the basis of its conclusions. The first right is the right to prove innocence. The second right is to plead for either no penalty or a lesser penalty although the conclusion regarding the guilt is accepted. It is the second right exercisable at the second stage which was taken away by the 42nd Amendment.” (emphasis supplied) 33. In view of the statutory provisions under Rule 15 of the CCS(CCA) Rules and law laid down by the Apex Court in the judgment cited to supra, petitioners cannot claim that non supply of provisional penalty order amounted to procedural defect in the disciplinary proceedings. 34. Keeping in mind, the parameters laid down by the Apex Court in the judgments cited above and having appreciated the submissions of learned counsel of the parties, this court is of the view that the disciplinary proceedings against the petitioners were carried out in terms of the procedure prescribed in that behalf under the CCS(CCA)Rules, 1965 and no part of the procedure in the said disciplinary proceedings does suffer from any defect or infirmity. 35. For the aforesaid reasons, the writ petitions are dismissed. There shall be no order as to costs. As a sequel, miscellaneous petition(s), if any, shall stand closed.