Raj Kumar Chauhan v. Union of India and
Case Details
Neutral Citation No. - 2023:AHC:209243-DB Court No. - 39 Case :- WRIT - A No. - 67182 of 2012 Petitioner :- Raj Kumar Chauhan Respondent :- The Central Administrative Tribunal And Others Counsel for Petitioner :- M.A.Mishra,Babu Nandan Singh,Manoj Kumar Singh Counsel for Respondent :- Vivek Singh,Purnendu Kumar Singh,Rama Shanker Yadav,Saurabh Srivastava Hon'ble Saumitra Dayal Singh,J. Hon'ble Shiv Shanker Prasad,J. 1. Heard Shri Babu Nandan Singh, learned counsel for the petitioner and Shri Purnendu Kumar Singh, learned counsel for the respondent-Union. 2. Present petition has been filed against the order of the Central Administrative Tribunal, Allahabad Bench, Allahabad, dated 25.01.2010, passed in Original Application No. 63 of 2010 (Raj Kumar Chauhan Vs. Union of India and 3 others). By that order, the learned Tribunal has dismissed the Original Application filed by the present petitioner and thereby confirmed the punishment order dated 17.12.2008 as confirmed in departmental appeal, vide order dated 28.10.2009. For ready reference, the order of the Tribunal reads as below : "ORDER (DELIVERED BY: JUSTICE A.K. YOG-MEMBER-JUDICIAL)
Legal Reasoning
the record, we find that the petitioner was a permanent employee of the Railways inasmuch as he was granted compassionate appointment on 15.5.2007. He may have worked for more than a year in that capacity, on substantive appointment made. Therefore, there can be no exception to the rule that no major punishment may have been inflicted upon the petitioner except in accordance with law i.e. after conclusion of a proper oral departmental enquiry, in accordance with the Rules. 13. It is also not in dispute that the respondent intended to initiate such proceeding. That was clearly indicated in the notice dated 18.8.2008 issued to the petitioner. The same has been extracted above. 14. However, it is a fact, within a period of four months therefrom, the punishment order providing for removal from service was issued (as quoted above). Perusal of that order does not bring out initiation of any departmental enquiry proceeding. On the contrary, the said order only indicates that the petitioner failed to respond to the earlier notice which clearly appears to be a reference to the notice dated 18.8.2008. Acting solely on that mistake on the part of petitioner, the disciplinary authority inferred that the petitioner was not interested in continuing his engagement with the Railways. In the first place, no such inference may have been available, in absence of any departmental enquiry conducted. Second, in absence of such enqury, it never became open to the disciplinary authority to inflict a major punishment on the petitioner, contrary to the Rules. 15. As to the pleadings, it clearly appears that the petitioner had pleaded before the Tribunal that he has been unfairly dealt with to the extent no departmental enquiry was conducted before passing the penalty order dated 17.12.2008. Here, we may note, by earlier order passed in these proceedings, we had required the Union of India to produce before the Court a copy of the Original Application. The same has been made available to us, today. Having perused the same, we have extracted the relevant paragraph of the Original Application, above. 16. In these proceedings, it has been again specifically pleaded, no disciplinary proceeding was conducted against the petitioner before awarding major penalty. The reply to the above pleadings is wholly evasive and unreliable. Instead of replying to the fact assertion made in paragraph-28 of the writ petition, the respondents have chosen to rely on the observation of the Tribunal that the conduct of the petitioner in not furnishing reply to the notice dated 18.8.2008 was a serious misconduct as may have disentitled him to any discretionary relief. 17. In the context of service jurisprudence, it is settled position in law that major penalty may not be awarded except in accordance with the procedures and rules prescribed therefor. As noted above, Rule 9 of the Rules would commend that an oral departmental enquiry may precede award of major penalty. No reason has been ascribed in the penalty order and no reason is shown to exist, otherwise if such departmental enquiry could or had been dispensed with. 18. Seen in that light, the punishment order is not founded on any departmental enquiry and it is not based on any satisfaction of the disciplinary authority that such enquiry may be dispensed with. 19. Resultantly, the conclusion cannot be escaped that the punishment order has arisen contrary to law. The basic requirement of rules of natural justice that a delinquent employee may first be confronted with charge of misconduct and that the said charge may be proved by leading adequate evidence, in his presence, has not only been violated but in the present facts, the said procedure is seen to have been completely ignored. 20. Therefore, we have no hesitation to reach the conclusion that the punishment order has arisen in vacuum. The same may never be sustained. Also, the Tribunal has missed that issue by mile. It has erred in looking at the conduct of the petitioner in failing to respond to the notice dated 18.8.2008. That was not a notice in the departmental enquiry proceedings. Rather, it was a notice proposing to initiate departmental enquiry proceedings. Therefore, the only consequence that may have arisen upon failure on the part of petitioner to respond that notice may have been-initiation of such departmental enquiry. Neither any charge sheet is shown to have been issued or served on the petitioner nor any domestic departmental enquiry is shown to have been conducted inasmuch as no enquiry report is seen to be existing leaving alone second show cause notice and consequential order.
Arguments
1. Heard Sri. M.A. Mishra, learned counsel for the applicant and Shri. P.N. Rai, Advocate representing the respondents. 2. The OA was listed for admission. We have perused the impugned order dated 28.10.2009, Anexure A-1/compilation-I. The said impugned order is a well reasoned order. The Appellate Authority has taken into account the fact that the applicant remained absent for six months without giving any information/intimation to his immediate Controlling Authority namely Section Engineer (P. Way) Railway Track Officer, Pilibhit. However, the application sent application dated 16.11.2007 directing to D.R.M. (Personnel) Izzatnagar with prayer to change his duties. In this application also we find no reference of his remaining absent or any prayer to grant leave because of his physical inability. The Appellate Authority also noted that the applicant has refused to accept registered letter. 3. From the aforesaid facts, it is clear that the applicant remained absent for several months without sanctioned leave and also did not cooperate in the Disciplinary Enquiry. Not accepting of registered letter itself is a serious charge and show indiscipline. 4. O.A. has no merit, it is accordingly dismissed. No costs." 3. Submission of learned counsel for the petitioner is, both at the stage of the Original Application filed by the petitioner and also in the present writ petition, it has been specifically pleaded that major punishment of removal from service has been inflicted on the petitioner without conducting oral departmental enquiry. Relying on Part-IV, Rule 9 of Railway Servants (Discipline & Appeal) Rules, 1968 (hereinafter referred to as the 'Rules'), it has been submitted, no major punishment may have been inflicted on the petitioner except in accordance with those Rules. The same would necessarily involve the conduct of oral departmental enquiry. Thus, reliance has been placed on the pleadings made in paragraph-4 (XXIV) of the Original Application. For ready reference, the said paragraph reads as below : "That no opportunity of hearing was afforded to the applicant by the respondent no. 4 and without initiating any disciplinary proceeding, the applicant have been removed from his service, which is against the Railway servants (Disciple and Appeal) Rules 1968." 4. Then, reference has been made to the pleadings made in paragraph-28 of the present writ petition. It reads as below : "28. That, no any opportunity of hearing was afforded to the petitioner by the respondent no. 4 and 5 and without initiating any disciplinary proceeding, the petitioner has been removed from service, which is against the Railway servants (Disciple and Appeal Rules 1968)." 5. Referring to the reply to the above paragraph contained in paragraph-29 of the counter affidavit, it has been submitted that there is no denial to the fact pleaded by the petitioner that no oral departmental enquiry was conducted before inflicting major punishment of removal from service. For ready reference, paragraph-29 of the counter affidavit reads as below : "29. That the contents of paragraph no. 28 of the writ petition are not admitted hence vehemently denied. However it is respectfully submitted that at every stage of the case the petitioner has got full opportunity of hearing and after affording proper opportunity of hearing the impugned orders has been passed and the same is also confirmed by Hon'ble Central Administrative Tribunal, Allahabad. It is also relevant to mention here that the Honble Central Administrative Tribunal, Allahabad in his order dated 25/01/2010 it was mentioned that "it is clear that the applicant remained absent for several months without sanctioned leave and also did not cooperate in the Disciplinary Enquiry. Not accepting of registered letter itself is a serious charge and show indiscipline.". Therefore the present writ petition is liable to be dismiss." 6. Second, it has been submitted, merely because the petitioner may have been failed to respond to the show cause notice dated 18.08.2008, it did not absolve the respondent from its obligation under the Rules to conduct an oral departmental enquiry. For ready reference, the contents of the notice dated 18.08.2008 reads as below : "पततኋ᭖ककः कत/पपी०सपी०/रतजककमतर चचौहतन/37 पቚኔषक, शपी रतज ककमतर चचौहतन पकत सቚኔक्शन इन्जपीननयर/पपीवቚኔ/ शपी गगोपतल मगो० मथकगढपी पपीलपीभपीत-2 बतल्मपीनक बस्तपी पगो० मकरसतनगቚኔट जजलत हतथरस। आज नदिनतኋ᭖क 29-02-2008 सቚኔ लगतततर आज तक अपनपी नडिययटपी सቚኔ नबनत नकसपी स्वपीककत अवकतश एवኋ᭖ नबनत नकसपी सयचनत सቚኔ आप नडिययटपी सቚኔ अनतजधिककत रूप सቚኔ नडिययटपी सቚኔ अनकपसस्थत हहै। इस कतयतኋलय कቚኔ पत सኋ᭖०/कतपपी०सपी०/रतजककमतर चचौहतन/973 नदिनतኋ᭖क 23- 6-2008 कगो आपकቚኔ घर कቚኔ पतቚኔ पर पत भቚኔजत गयत थत परन्तक आप आज अपनपी नडिययटपी पर उपसस्थत नहपी हहए। अतकः पकनकः आपकቚኔ पतस पत भቚኔजत जत रहत हहै पत पतनኌ कቚኔ सतत नदिन कቚኔ अन्दिर नडिययटपी पर उपसस्थत हगोनቚኔ एवኋ᭖ अनकपसस्थत कቚኔ सम्बन्धि मम स्पषपीकरण दिቚኔवቚኔ। अन्यथत नदियቚኔ गयቚኔ समय सቚኔ सपीमत कቚኔ अन्दिर कतयኋस्थल पर उपसस्थत नहपी हहए तगो आपकቚኔ नवरु्ቍ अनकशतसनतत्मक कतयኋवतहपी ककी जतयቚኔगपी।" 7. Without conducting such enquiry, the below noted punishment order was passed on 17.12.2008 : "कमኋचतरपी लम्बቚኔ अवजधि सቚኔ अनकपसस्थत चल रहत हहै। इस दिचौरतन कमኋचतरपी नቚኔ उपसस्थत हगोकर नकसपी पकतर ककी कगोई सयचनत नहपी दिपी कमኋचतरपी कቚኔ नवरु्ቍ जतरपी दिपीघኋ दिण्डि जतपन उसकቚኔ गकह पतቚኔ सቚኔ वतपस आ गयत हहै। इन सभपी सस्थनतयोሱ मቚኔ यह पतत चलतत हहै नक कमኋचतरपी ककी रቚኔल सቚኔवत मቚኔ अनभरुनच नहपी रह गयपी हहै। अतकः कमኋचतरपी कቚኔ नवरु्ቍ जतरपी दिपीघኋ दिण्डि जतपन कቚኔ जलयቚኔ एक तरफत कतयኋवतहपी करतቚኔ हहयቚኔ ननम्न आदिቚኔश पतररत नकयत जततत हहै" "कमኋचतरपी कगो रቚኔल सቚኔवत सቚኔ तत्कतल पभतव सቚኔ हटतयत जततत हहै।" (Remove from service)" 8. Bare perusal of that order itself makes it plain that no departmental proceeding was conducted against the petitioner. Even if the petitioner had failed to respond to the notice dated 18.08.2008, the only consequence he may have been visited with, could be-initiation of oral departmental enquiry as was clearly indicated in that notice. 9. On the other hand, learned counsel for the respondent-Union would contend, there is no denial the fact that the petitioner remained absent over a long time. He did not submit any application for grant of leave. Not only that, the petitioner failed to respond to the notice dated 18.08.2008 and he did not join back on duty. Therefore, the respondent/disciplinary authority was left with no option but to dispense with the services of the petitioner. 10. The conduct of the petitioner in failing to respond to the notice dated 18.08.2008 has been considered by the Tribunal. Taking a serious note of the same, the Tribunal has refused to offer any interference in the penalty order. 11. It is the submission of the learned counsel for the respondent that the order of the Tribunal does not warrant any interference. 12. Having heard learned counsel for parties and having perused
Decision
21. In view of the above, we find, no useful purpose may be served in remitting the matter to the Tribunal as a fundamental error has crept in award of major punishment as may not be cured by the Tribunal. While in judicial review proceedings, we may not readily set aside the punishment order, at the same time, we would be failing in discharge of our duty if we only push out a case from this Court to the Tribunal. The facts of the present case are glaring and exceptional. 22. Accordingly, the orders dated 07.12.2011, 25.01.2010, 28.10.2009 and 17.12.2008 passed by the respondent nos. 3, 1, 4 and 5 are set aside. The matter is remitted to the disciplinary authority to reconsider the issue of initiation of departmental enquiry proceedings and proceed strictly in accordance with law. Since more than 15 years have passed, we also require the disciplinary authority to consider if the punishment already meted out to the petitioner may serve the interest of justice as may not warrant any further enquiry and allow the petitioner to join back in service subject to such terms as the disciplinary authority may choose to impose. 23. In any case the proceedings may be completed within a period of six months from today. 24. The writ petition is allowed. No order as to costs. Order Date :- 1.11.2023 SA (Shiv Shanker Prasad, J.) (S.D. Singh, J.) Digitally signed by :- SALMAN ALI High Court of Judicature at Allahabad