High Court
Case Details
WP(C) 251/2011 B E F O R E HON’BLE MR. JUSTICE A.M. SAPRE,THE CHIEF JUSTICE HON’BLE MR. JUSTICE A. K. GOSWAMI JUDGMENT & ORDER (Oral) (By A.M. Sapre, CJ) This is a writ petition filed by the applicant of O.A. No.153 of 2009 under Arti cle 227 of the Constitution of India against the order dated 14.6.2010 passed by the learned Central Administrative Tribunal (for short, the Tribunal) in the af
Legal Reasoning
orementioned original application. By the impugned order, the Tribunal dismissed the original application f 2. iled by the writ petitioner and in consequence upheld the order of compulsory re tirement of the applicant (writ petitioner) which was impugned in the aforementi oned O.A. 3. So the question that arises for consideration in this writ petition is w hether the Tribunal was justified in dismissing the original application of the petitioner and in turn was justified in upholding the order of compulsory retire ment of the petitioner? 4. Facts of the case lie in a narrow compass. They need mention in brief. 5. The writ petitioner was a railway employee. He was working as Senior Commerc ial Clerk. He was served with charge sheet which contained two major charges in relation to the misconduct which he had committed in discharge of his official d uties. The charges were in relation to acceptance of bribe by the petitioner as an illegal gratification. The petitioner contested the charges in the inquiry pr oceedings by filing reply to the charge sheet and also by adducing evidence. He was afforded full opportunity to defend in the inquiry proceedings. The inquiry officer, however, found the charges to be partly proved. The disciplinary author ity on receipt of the inquiry report and on its perusal, held both the charges t o be proved and hence by order dated 3.4.2007 removed the petitioner from serv ice. The petitioner appealed departmentally as per the rules against the order o f removal. The appellate authority by order dated 24.7.2007 though upheld the fi ndings of the inquiry officer but interfered in quantum of punishment and impose d the punishment of compulsory retirement with full pensionery benefits in place of removal from service. It is against imposition of this punishment, the petit ioner felt aggrieved and filed the original application before the Tribunal out of which this petition arises. The Tribunal dismissed the original application a nd in turn upheld the order of compulsory retirement. The petitioner felt aggrie ved by the order passed by the Tribunal and filed this petition under Article 22 7 of Constitution of India. 6. Having heard the learned counsel for the parties and on perusal of the r
Decision
ecord of the case, we find no merit in the writ petition. 7. This is what the Tribunal, while upholding the order of compulsory retirem ent, held in operative para. (cid:28)11. We have heard the rival submissions in the light of material placed before us and the precedents relied upon. In the normal course booking clerk first acce pt the fare and then count it and after satisfying about with the correctness of the fare he hands over the ticket along with balance if any. As such the modus explained by the applicant that first he has given the ticket then counted the a mount appears not to be plausible. 12. In regard to collection of coin from the pan shop no cogent material was add uced before us. The amount alleged to have been collected from the pan shop was not mentioned in the cash register. Even in the post check memorandum, there is no whisper about the receipt of the amount. Only after the detection of excess c ash of Rs.79/- this story appears to have been concocted. 13. It is not a mandatory requirement that investigation officer should arrange two gazette officer from Railway to act as independent witness. Service of non g azetted officer can also be utilized. There is no clear proof that the witness w as short of hearing. Adequate opportunity of being heard was given to the appli cant. On this count we do not find any infirmity in the impugned order. In the c ase of Moni Shankar vs. Union of India & another, (2008) 3 SCC 4, it was held th at the Railway servant must get an opportunity to explain the circumstances appe aring against him. The cumulative effect of the illegalities/irregularities requ ired to be taken into consideration to judge as to whether the departmental proc eeding stood vitiated or not. We find that opportunity to explain the circumstan ces was given to the applicant and there was no irregularity in arriving at the conclusion. In the case of State of Mysore vs. K. MancheGowda, AIR 1964 SC 506, it was held that (cid:28)if the proposed punishment is mainly based upon the previous r ecord of the Government servant, and it is not disclosed in the notice, it would mean that the main reason for the proposed punishment is withheld from the know ledge of the Government servant. Hon’ble Supreme Court has held that second noti ce to Government servant must disclose the fact and if it is done punishing auth ority can make resort to previous record. In this case we find that competent au thority has not taken into consideration the previous record for awarding the pu nishment. In the case of AbujamAmuba Singh vs. State of Manipur &Ors., 2000(1) G LT 227, the Imphal Bench of the Hon’ble High Court has held that if the authorit y wants to take action on the basis of previous record of an employee, he must h ave notice of such proposal. In the present case this is not relevant as the pun ishment was not inflicted on the basis of previous record. In the case of P. Zok ha vs. State of Mizoram &Ors. 2002 (1) GLT 476, past conduct and records of the petitioner were taken into account without framing a charge. On this factual mat rix it was held that major penalty upon the petitioner was illegal. The facts of the present case are different as such this decision is not applicable. In the case of Tribhuvan Prasad vs. Union of India &Ors. 2005(3) ATJ 578, it was held t hat investigation officer should arrange two Gazetted officers from Railway to a ct as independent witnesses as far as possible. We have already given a finding that it was not possible in the circumstances of the present case to arrange two gazetted officers as such service of the non gazetted staff was resorted to. 14. We have taken into consideration the entire conspectus of the factual detail s in the light of the precedents relied upon. We have gone through the impugned order. We do not find any infirmity in it. Accordingly we uphold the same. In the result O.A stands dismissed. No costs. (cid:29) 8. We are in agreement with the reasoning and the conclusion arrived at by the Tribunal quoted supra as in our opinion, it is just and proper and hence does n ot call for any interference. 9. In our considered opinion also, once the charges relating to acceptance o f bribe were held proved in the inquiry proceedings in accordance with law again st the delinquent employee, then the petitioner was liable to be dismissed/remov ed from service as provided in the Rule. The petitioner was, in fact, removed fr om his service by the appointing authority. It was, however, the appellate autho rity which interfered in the quantum of punishment, and while altering the punis hment, reduced it from removal from service to that of the compulsory retirement . The petitioner, in our opinion, should feel fortunate that he got partial reli ef in his favour from the appellate authority which saved him from suffering the stigma of removal from service despite the serious charges of acceptance of bri be having been proved against him. 10. So far as this court is concerned, it can neither examine the whole case a gain on facts and nor can it reappreciate the evidence like an enquiry officer or as an appellate court. It is not permissible in writ jurisdiction. All that t his court can do in exercise of its writ jurisdiction is to find out as to wheth er there exists any jurisdictional error in impugned order or not but having per used the record, no such error is noticeable to us. 11. Learned counsel for the petitioner was also unable to point out to us any l egal or jurisdictional error in the impugned order which may persuade us to inte rfere in the impugned order. His only argument was that the respondents have not till date released the pension which the petitioner is now entitled to receive from the respondents consequent upon passing of the order of compulsory retireme nt and hence this court should direct the respondents to release the pension and its arrears in petitioner’s favour as provided in the Pension Rules. We agree w ith this submission as in our opinion, the petitioner is entitled to receive the pensionary benefits as provided in service rules. 12. In the light of foregoing discussion, though we find no merit in this pe tition which fails and is dismissed, but at the same time, we direct the respond ents to ensure release of the arrears of pension as also the regular pension whi ch is payable to the petitioner as provided in service rules after making its pr oper fixation within a period of three months from the date of this order as an outer limit and then continue to pay regular monthly pension to the petitioner a s provided in Rules. No cost.