Mathura Prasad Vs. Union of India & Ors
[2006] Insc 733 (1
November 2006)
S.B.
Sinha & Markandey Katju
(Arising
out of SLP) No. 25654 of 2005) S.B. Sinha, J.
Leave
granted.
Appellant
was engaged as a casual labour in the year 1978 for a period of four months. He
was posted in Ganj Basoda Station.
Subsequently,
he was appointed at Bina Depot in the year 1981 and served upto 30.6.1982. He
was appointed similarly on a few more occasions and was declared as a monthly
rated casual labour in 1986. He was issued a service card wherein the details
of his service as a casual labour were recorded from time to time. Service Card
contained the particulars of the places, number of days and the capacity in
which he had worked.
Pursuant
to or in furtherance of a scheme of regularization in 1989, his name was
short-listed. The service card was sent for verification. A purported report
dated 31.5.1990 was sent by an Electrical Foreman, Ganj Basoda challenging that
it was a fake one; whereupon a major penalty was imposed on him, inter alia, on
the charges; firstly, his service card bearing No. 303774 was fake; and
secondly, that he secured employment on the basis of the fake service card.
A
departmental inquiry was initiated. The Inquiry Officer upon considering the
materials placed on records in his report, stated:- "This employee worked
with the Works Inspector (Pul) Beena. His record was said to be at Beena with
the IOW (East) but it came to be known from there that the record I.O.W. (M)
was with the petitioner. Having gone there the matter was worked in to. There
the full record of Works Inspector (Pul) Beena became available. I.O.W. (M) Vidisha
gave it in writing that Shri Mathura Prasad S/o Babu Lal as per his service
card No. 303774 worked under the Works Inspector (Pul) Beena as canal Khalasi w.e.f.
30.6.81 to 18.7.81 who is mentioned at S.No. 101 in the L.T.I. Register and at
that time he was working under the Works Inspector (Pul) Beena K.L. Shridhaaran.
NCMR Sheet was also seen. The name of the employee is mentioned in sheet No.
66253 of 18.7.81." The disciplinary authority was, however, not satisfied
with the report.
It was
sent it back to the Inquiry Officer under a demi-official letter dated
2.11.1993 stating:- "You were nominated as enquiry officer in case of S-5
served to Shri Mathura Prasad, MRCL Khalasi on dated 5.7.90. You have submitted
your enquiry report on 15.10.93, while going through enquiry report, it is not
clear how you have come on the conclusion and you have given the final
findings.
The
file is being sent to you back. Kindly submit your report giving clear remarks
about every points of charges framed in SF-5.
You
are hereby advised to re-submit your enquiry report by enquiring properly to
this office immediately." Without any further inquiry and without giving
any further opportunity of hearing to Appellant, the Inquiry Officer opined
that the said service card was fake, stating:- "On 4.12.93 the perusal of
the record of the matter of the A.R.E. Shri S.C. Upadhyaya also was made and it
was given in writing to Shri Mathura Prasad S/o Babu Lal that the service card
bearing No. 303774, the copy of which has been given on 3.3.92 has not been
issued by the R.T.I. (Sec) Gunjbasoda but according to that your name has been
showed against the T.I. of Phulle at S.No. 8 in the L.T.I. Register which has
not been verified by any of the FRTI (Sec.) which is at page No. 64 and bears
the signatures of the ARE and Mathura Prasad.
From
this thing it transpires that the card No. 303774, which has been given to Mathura
Prasad S/o Babu Lal, has not been issued by RTI (Sec.) Gunjbasoda.
Therefore,
this card is forged." Relying on or on the basis of said purported report
of the Inquiry Officer, punishment of removal from service was imposed by the
disciplinary authority by an order dated 26/28.4.1994. The punishment of
removal of service of Appellant was confirmed by an order dated 7.7.1994 passed
by the Appellate Authority i.e. Upper Divisional Electrical Engineer, Bhopal.
Appellant
filed an Original Application before the Central Administrative Tribunal,
questioning the said order of the disciplinary authority as also the Appellate
Authority. By a judgment and order dated 13.2.2001, the Tribunal allowed the
said application and directed reinstatement of Appellant with consequential
benefit but with 50% back- wages. The Tribunal arrived at the said conclusion
on the premise that the disciplinary authority at the first instance having
differed with the findings of the Inquiry Officer was enjoined with a duty to
record reasons therefor and record its own findings on the said charge that the
evidence was sufficient for the purpose as required under Rule 10(3) of the
Railway Servants (Discipline & Appeal) Rules, 1968 (for short the Rules).
It was further held by the Tribunal that there was no finding with regard to
endorsements of work rendered by Appellant between 1978 to 1986 contained in
the service card of Appellant are inaccurate in particulars.
Respondent
herein preferred a Writ Petition before the Madhya Pradesh High Court thereagainst
wherein, inter alia, it was contended that a finding of fact having been
arrived at by the disciplinary authority that the service card was fake, the
Tribunal could not have interfered therewith. It was further contended that
only because the entries therein were in relation to the service by
Respondent-Appellant, the same by itself was not a fresh ground for overturning
the finding of the disciplinary authority. The High Court agreed with the said
contentions and allowed the Writ Petition, inter alia, holding:- "The
Inquiry Officer surmised that as the entries in the service card was not issued
by the PW-1, Ganj Basoda, when he submitted the first report. Therefore, the
Disciplinary Authority wanted him to give specific findings thereon and he gave
further finding that the card was a fake. Therefore, the second inquiry report
is virtually a continuation of the first inquiry report and the second report
rightly considered the charge and recorded appropriate findings therein which
he had failed to do in the first report. The fact that the first respondent
might have served as Casual Labourer in the year 1978 and again from 1981 to
1983 and from 1985 to 1989 as per the endorsements contained in the service
card, to repeat, is not relevant. The charge was not that the first respondent
did not serve during that periods. The charge was that he obtained fake service
card where several entries were genuinely made. It is apparent that when such
entries were made in the years 1981 and 1985, the authorities were not aware
that the service card was a fake. Only when it was sent for verification to the
authority who is said to have issued the service card, it was found that the
service card was not issued by that office and it was realized that it was a fake."
The short question which falls for our consideration is application of
sub-Rules (2) and (3) of Rule 10 of the Rules.
Rules
were framed by the Union of India in exercise of its jurisdiction under the
proviso appended to Article 309 of the Constitution of India. Sub- Rules (2)
and (3) of Rule 10 of the Rules read thus:-
"10.
Action on the Inquiry report.
(1)
(2)
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 further inquiry according to the provisions of Rule 9
as far as may be.
(3)
The disciplinary authority shall, if it disagrees with the findings of the
inquiring authority on any article of charge, regards its reasons for such
disagreement and record its own findings on such charge, if the evidence on
record, is sufficient for the purpose." Indisputably the Inquiry Officer
was enjoined with a duty to enquire into the charges of misconduct levelled
against Appellant. He enquired into the matter. He found that the contents of
the service card were correct. In other words, the particulars in regard to the
period of work, place of work and the nature of work entered into therein were
correct. He might not have been recorded that the service card was genuine or
fake but substance of the allegation against Appellant was as to whether he had
obtained an appointment by using a fake service card.
The
disciplinary authority merely sent a demi-official letter to the Inquiry
Officer. He did not pass any order. The file was sent back to him for a clear
remark on every point of charges framed against Appellant. It could not have
been either an order passed in terms of sub-Rule (2) of Rule 10 or sub-Rule (3)
thereof. The disciplinary authority was a statutory authority. He was,
therefore, bound to act within the four corners of the statute. Procedures
relating to conduct of a disciplinary proceeding have been laid down by the
Rules. He was bound to follow the same scrupulously. It is one thing to say
that he wanted the Inquiry Officer to state the points to clear the said
findings arrived at by him on each of the charges separately, but he did not
have his jurisdiction to issue the direction under either of the sub-rules of
Rule 10. Inquiry Officer held a further enquiry in furtherance of the direction
of the disciplinary authority. He proceeded on the basis that his Disciplinary
Authority required him to hold further enquiry. Inquiry Officer, therefore,
pursuant thereto or in furtherance of the said letter dated 2.1.1993 issued by
the disciplinary authority could not have arrived at a different finding, when
no further opportunity was given to Appellant herein and no reason was recorded
therefor. Even in his report dated 21.12.1993 he arrived at the conclusion that
the service card was forged only because the purported card had not been issued
by RTI (Sec), Ganj Basoda.
Whether
any of the entries contained in the said card was correct or not, was not
verified. It could not have been held to have no relevance for arriving at a
finding that the same was a forged one.
Curiously
the disciplinary authority in its order dated 26.4.1994, inter alia, recorded:-
"I have decided to impose upon you the penalty of compulsory
retirement/removal/dismissal from service.
You
are therefore, compulsorily retired/removed/dismissed from service with"
The punishment proposed was vague. The Tribunal, therefore, although relied on sub-Rule
(3) of Rule 10, in our opinion, arrived at the right conclusion as the matter
having not been remitted to the disciplinary authority for a further inquiry
under sub-Rule (2) of Rule 10 of the Rules, the same was illegal and without
jurisdiction. It had not been disputed before us and it would be a mere
repetition to state that the entries contained in the service record were
correct. The High Court, therefore, may not be correct in arriving at its
conclusion in its judgment.
The
Inquiry Officer in his first report might not have specifically recorded his
findings with reference to each of the charges levelled against Appellant but
he arrived at a finding on analysis of the materials on record.
If he
was to differ with the said findings on the basis of any fresh materials, he
was enjoined with a duty to grant another opportunity of hearing to Appellant.
Even
if the Inquiry Officer had, in his first report, proceeded on surmises and
conjectures as was observed by the High Court, the disciplinary authority could
disagree with the said finding but it was, therefor, required to record its
reasons. No reason was recorded. Sub-Rules (2) and (3) of Rule 10 aim at
achieving the same purpose. If sufficient materials are not available on
record, a direction for holding a further inquiry may be issued in terms of
sub-Rule (2) of Rule 10 so as to enable the department to lead further evidence
before him. For the said purpose also, reasons are required to be recorded by
the disciplinary authority. An opportunity of hearing to the delinquent officer
is required to be given.
However,
in the event, the disciplinary authority comes to the conclusion that the
conclusion arrived at by the Inquiry Officer on the basis of materials placed
by the parties are incorrect, he may disagree with the said findings but even, therefor,
he is required to record reasons in support thereof. The requirement of
sub-Rule (2) or sub-Rule (3) having not been complied with, the Inquiry Officer
could not have arrived at a different finding. The High Court unfortunately did
not consider this aspect of the matter.
When
an employee, by reason of an alleged act of misconduct, is sought to be
deprived of his livelihood, the procedures laid down under sub- Rules are
required to be strictly followed. It is now well settled that a judicial review
would lie even if there is an error of law apparent on the face of the record.
If statutory authority uses its power in a manner not provided for in the
statute or passes an order without application of mind, judicial review would
be maintainable. Even an error of fact for sufficient reasons may attract the
principles of judicial review.
Shri
S.N. Chandra Shekhar & Anr. v. State of Karnataka & Ors. 2006 (3) SCC 208 wherein this Court held:-
"34.
The Authority, therefore, posed unto itself a wrong question. What, therefore,
was necessary to be considered by BDA was whether the ingredients contained in
Section 14-A of the Act were fulfilled and whether the requirements of the
proviso appended thereto are satisfied. If the same had not been satisfied, the
requirements of the law must be held to have not been satisfied. If there had
been no proper application of mind as regards the requirements of law, the
State and the Planning Authority must be held to have misdirected themselves in
law which would vitiate the impugned judgment.
35. In
Hindustan Petroleum Corpn. Ltd. v. Darius Shapur
Chenai, this Court referring to Cholan Roadways Ltd. v. G. Thirugnanasambandam
held: (SCC p. 637, para 14)
14.
Even a judicial review on facts in certain situations may be available. In Cholan
Roadways Ltd. v. G. Thirugnanasambandam, this Court observed: (SCC 253, paras
34-35) '34It is now well settled that a quasi-judicial authority must pose unto
itself a correct question so as to arrive at a correct finding of fact. A wrong
question posed leads to a wrong answer. In this case, furthermore, the
misdirection in law committed by the Industrial Tribunal was apparent insofar
as it did not apply the principle of res ipsa loquitur which was relevant for
the purpose of this case and, thus, failed to take into consideration a
relevant factor and furthermore took into consideration an irrelevant fact not
germane for determining the issue, namely, that the passengers of the bus were mandatorily
required to be examined. The Industrial Tribunal further failed to apply the
correct standard of proof in relation to a domestic enquiry, which is
"preponderance of probability" and applied the standard of proof
required for a criminal trial. A case for judicial review was, thus, clearly
made out.
35.
Errors of fact can also be a subject-matter of judicial review. (See E. v.
Secy. of State for the Home Deptt). Reference in this connection may also be
made to an interesting article by Paul P. Craig, Q.C. titled "Judicial
Review, Appeal and Factual Error" published in 2004 Public Law, p.
788.'"
(See also Sonepat Coop. Sugar Mills Ltd. v. Ajit Singh, SCC paras 23 & 24.)
36.
The order passed by the statutory authority, it is trite, must be judged on the
basis of the contents thereof and not as explained in affidavit. (See Bangalore Development Authority v. R. Hanumaiah)."
The
said dicta shall apply to the facts of the present appeal also. The impugned
judgment, therefore, cannot be sustained. The appeal is, thus, allowed.
However, the matter is remitted to the disciplinary authority. It may pass an
appropriate order upon application of his mind afresh in the light of the
observations made hereinabove.
Appellant
is entitled to costs. Counsel's fee assessed at Rs.15,000/-.
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