Hon'ble Pankaj Naqvi, J.
Heard Sri U.N. Sharma, learned Senior Advocate assisted by Sri Chandan Sharma who appeared in support of this petition and Sri Sunil Trivedi, learned Advocate who appeared for the respondents.
By means of this petition petitioner has prayed for quashing the order dated 10/11.8.2008 (Annexure-1 to the writ petition) passed by Chairman-cum-Managing Director/Disciplinary Authority, Northern Coalfields Limited, Singrauli and the order dated 20.01.2009 (Annexure-2 to the writ petition) by the Appellate Authority by which appeal filed by the petitioner has been dismissed.
For disposal of the writ petition facts in brief will suffice.
Petitioner was working as Superintending Engineer (Excavation) at Dudhichua Project of Northern Coalfields Limited. On 24.7.2007 a charge sheet was served on the petitioner of which reply was submitted on 4.8.2006. Disciplinary authority in exercise of powers as conferred under Rule 29(2) of the Coal India Executives Conduct, Discipline and Appeal Rules, 1978, hereinafter referred to as Rules appointed Sri S.P.Sahu, Ex C.G.M. Northern Coalfields Limited as inquiry officer vide order dated 10.8.2006. Prosecution brief was submitted on 26.6,.2007 upon which petitioner filed objection/defence that charges against him are vague, misconceived and they are uncalled for. Then inquiry report was submitted on 31.8.2007. Disciplinary Authority dis-agreed with the findings of the inquiry officer and a memo dated 10.1.2008 was issued. Petitioner filed representation on 22.1.2008 and the petitioner was asked to submit explanation regarding quantum of punishment. Petitioner submitted reply on 24.5.2008 and also representation dated 23.7.2008 for review of his case on various grounds but nothing favoured to the disciplinary authority and following penalty was imposed:-
"Reduction to immediate lower rank for a period of two years with stipulation that penalty would not have the effect of postponing his future increments of pay and that he would regain his original seniority on his restoration to original grade."
Against the aforesaid decision of the disciplinary authority writ petition was filed by the petitioner i.e. Writ Petition No. 42512 of 2008 which was finally decided on 20.8.2008 and petitioner was relegated to take recourse of the alternative remedy. Petitioner preferred departmental appeal but that was dismissed on 20.1.2009 and therefore, against the order of the disciplinary authority dated 10/11.8.2008 and the order of the appellate authority dated 20.1.2009 present petition is before us.
Submission of the learned counsel for the petitioner is that respondents did not quantify any loss and the reason whether any loss has been caused to the department and if any loss has been caused to the department then how petitioner can be held to be responsible and liable for punishment. It is then submitted that major penalty could have been imposed only when charge of misconduct or misbehaviour is there but here is the case where there is no charge of misconduct and at the same time here is the case where on the finding of the disciplinary authority himself apart from the findings of the inquiry officer one Sri Gupteshwar Singh. Authority of the coordinate rank can be said to be the main person responsible and petitioner can be said to be little lacking in care in execution of work but only petitioner has been singled out and has been punished.
It is further submitted that if the disciplinary authority was to dis-agree with the findings recorded by the inquiry officer then under Rule 30.4 of the Rules he is to record his reason for dis-agreement and is to remit the case to the inquiry officer, but here no such exercise has been done and disciplinary authority proceeded to impose the final penalty.
Learned counsel for the petitioner placed reliance on Rule 30.4 of the Rules which can be quoted here-
"If the Disciplinary Authority considers that a clear finding is not possible or that there is any defect in the inquiry, the Disciplinary Authority may, for reasons to be recorded in writing, remit the case to the Inquiring Authority for further inquiry and report. The Inquiring Authority will, there upon , proceed to hold the further inquiry according to the provisions of rule 29.3 as far as may be."
It was then submitted that inquiry officer clearly found that charges against the petitioner at article II, III and IV are not at all proved and charges at article (I) was found to be partially proved but the disciplinary authority without looking into various reasons and the grounds so given by the inquiry officer in a most arbitrary manner took the contrary view.
Apart from the aforesaid submission about arbitrary and whimsical view taken by the disciplinary authority, argument is that appeal filed by the petitioner has also not been properly considered and that has been dismissed in a very cursory manner without taking into account the series of arguments, bulk of documents so referred by the petitioner, and therefore, on account of non consideration of manner by the appellate authority, the prejudice has occasioned to the petitioner.
Sri Trivedi, learned Advocate who appeared for the respondents submits that scope of judicial review in the matter of punishment if there is no complaint of any procedural lapse, violation of Principles of Natural Justice and inherent fault that is very narrow and this court is not supposed to reassess the evidence and to go into sufficiency of material for taking decision by the disciplinary authority.
It was then submitted that although the inquiry officer exonerated the petitioner on three charges and only one charge was found to be partially proved but the disciplinary authority has full power to dis-agree and at the same time to take appropriate view whatever he feels to be proper in the facts. It was then submitted that even if another coordinate officer was found to be at fault it is the petitioner who was found to be executor of the entire work, and therefore, final punishment has been rightly imposed on him.
In respect to the non consideration of the matter by the appellate authority, it is submitted that it may be a case where at length, facts and details are not mentioned but the appellate authority has considered the matter and has dismissed the appeal.
In support of the submission that scope of interference of this court in the matter of punishment is very narrow decisions given by the Apex Court in case of State Bank of Mysore and others Vs. M.C. Krishnappa reported in (2011)7 SCC, 325 and in case of State of Uttar Pradesh and others Vs. J.P. Saraswat reported in (2011) 4 SCC, 545 were referred.
At the very outset we can observe that so far scope of interference in these matters as submitted by the learned counsel for the respondent is concerned there cannot be any quarrel but at the same time there has to be satisfaction of this court about application of mind by the disciplinary authority in respect to the findings recorded by the inquiry officer specially in case of dis-agreement and at the same time consideration of the claim/contention of the employee by the appellate authority who is supposed and is expected to go into the facts, evidence as are on record before forming an opinion. The consideration of the facts and objection of employee at the appellate level has to be there so as to argue before this court about limited scope and powers of this court.
Learned counsel for the petitioner tried to place before this court the bulk from the inquiry officer report for showing the innocence of the petitioner and at the same time to show the main involvement, if any, of coordinate officer Sri Gupteshwar Singh who was not even proceeded although he gave entire note and approved the things.
Although we are not to go into the merits and details as written by the inquiry officer to act like a fact finding authority but to just test the argument about lack of application of mind by the disciplinary authority and his insistence of taking action against the petitioner alone, we are to notice some of the findings in the light of submission of the petitioner in this respect.
So far inquiry officer is concerned in respect to charge at article II, III and IV nothing wrong against the petitioner was found and the conclusion is that due to lack of information something proceeded and then quick decision was taken on coming to know about the facts and loss to the department was avoided by the petitioner.
In respect to charge at article (I) which was found to be partially proved, the finding of the inquiry officer is quoted here-
"From the above, it is clear that the total status about whereabouts of the bucket, issue of work order, period of work, details of payment were known to Shri Gupteshwar Singh, In-charge of Base Workshop, Nigahi only and at no point, he made mention of this while forwarding the bill to his CE(Excv) etc. and was they have stated, they have countersigned the bills in routine manner. Had Shri Gupteshwar Singh mentioned about regularisation of work done earlier and prior to issue of work order, they might have acted differently. Contention of Shri Gupteshwar Singh DW-3 that he got the bucket repaired before issue of work order due to pressures from senior does not carry any weight. Therefore, I hold that major responsibility of article no. 1 lie on Base Workshop In-charge Shri Gupteshwar Simngh and as Shri Lalan Kumar was co-co-co-coordinating activities of shovel repairing at Base Work shop and field both, he is responsible for the charges to the extent of him being a co-coordinating officer. He is not senior in rank and he is not the controlling officer of the base work shop In-charges. So the charges are partially proved against Sri Lalan Kumar."
(underlined by us) So far disciplinary authority is concerned, to disagree with the findings about the charge at article (i) the following observation was made-
"The flawed analysis of evidence by the IA led to his findings to the extent of fixing responsibility on the said Shri Gupteshwar Singh and the charge against Shri Lalan Kumar to be "partly Proved" . A proper analysis of evidence and procedure leaves no room for doubt whatsoever that the movement of the bucket would have been known to Shri Lalan Kumar and taken place with his approval."
Although observation has been made that on proper analysis of evidence and procedure it leaves no room for doubt whatsoever that the movement of bucket would have been known to Sri Lalllan Kumar and taken place with his approval but no evidence in detail on various aspect as noticed by the inquiry officer on various document as has been filed by the petitioner to demonstrate the processing, noting and approval by Gupteshwar Singh has been referred for not accepting their worth has been given.
We have already noticed about the powers of the disciplinary authority in the matter of disagreement with the findings of the inquiry officer as provided under Rule 30(4) of the Rules which clearly states that if a clear finding is not possible the matter may need remittance to the inquiry officer for further inquiry and report.
Apart from the aforesaid, we have already noticed that earlier petitioner came before this court by filing writ petition against the decision of the disciplinary authority and he was relegated to take recourse of appeal. This court while dismissing the writ petition on 20.8.2008 in respect to various arguments on merits of the charges and the reasons of disagreement and about petitioner's defence made the following observations-
"Sri Umesh Narain Sharma would like us to go into the merits of the chrges and the reasons of disagreement and the petitioner's defence. These in our opinion can be best looked into by the appellate authority. The scope of powers under Article 226 of the Constitution of India to interfere with the punishment order, by passing the appeal is very limited."
(underlined by us) At this stage we may just quote the provisions in respect to appeal which is provided in Chapter 5 of the Rules-
36.1 of Coal India Executives' Conduct Discipline and Appeal Rules, 1978-
"An appeal shall be preferred within one month from the date of communication of the order appealed against. The appeal shall be presented to the Authority specified in the Schedule to whom the appeal lies, a copy being forwarded by the appellant to the Authority which made the order appealed against . The latter Authority, on receipt of the copy of the appeal, shall forward the same together the comments and the records of the case to the Appellate Authority within fifteen days without waiting for any direction from the Appellate Authority. The Appellate Authority shall consider whether the findings are justified or whether the penalty is excessive or inadequate and pass appropriate orders within three moths of the date of appeal. The Appellate Authority may pass order confirming, enhancing, reducing or setting aside the penalty or remitting the same to the Authority which imposed the penalty or to any other Authority with such direction as it may deem fit in the circumstances of the case."
(underlined by us) Apart from observations made by this court, as noted above, Rules itself makes it clear that appellate authority has to consider that whether the findings are justified or the penalty is excessive for which the comments and the record as is required to be send, will have to be looked into.
In Rule 37 apart from the power of appeal, power of review is also provided. It goes to show that appellate authority is vested with wide powers and on getting appeal he is to call upon the comments and the records of the case obliviously for the purpose of assessment of the entire things, to test the merits in the defence, merits in the findings of the inquiry officer, merits in the decision taken by the disciplinary authority in respect to imposition of penalty and also to find out that whether it is excessive or inadequate.
Here is the case where petitioner is throughout saying that charges against him is not about misconduct or misbehaviour and the main responsibility from the record and as has been found by the inquiry officer can, if any, is of coordinate officer Sri Gupteshwar Singh who processed with the entire things, approved in his own hand writings and even it has been approved by the Chief Engineer (Excavation). Documents in this respect has been filed as Annexures 16, 17 and 18 to the writ petition.
Thus on the facts, when this court relegated the petitioner to get findings from the appellate authority, as noted above, who is possessed with wide powers to test the decision of the disciplinary authority in the light of the comments and records then in the light of the charges, findings of the inquiry officer about main responsibility of another official and in the light of various documents showing process and approval in the own handwriting of coordinate officer and even of the superior and keeping in mind that no loss has been found to have been caused to the department, the Appellate Authority was required to look into the merits in the submission and after dealing the record, a finding was required accordingly. Good faith in the action of petitioner, as argued in the light of facts and evidence was liable to be seen.
A perusal of the order of the appellate authority (Annexure-2 to the writ petition) makes it clear that disposal of the appeal is in a very summary manner and from the order nobody can be sure that the appellate authority has applied its mind to the comments, and record about merits in the contention of the petitioner.
The only consideration and findings while dismissing appeal as appears from the order of the appellate authority can be quoted here-
"AND WHEREAS, the memorandum dated 24.7.2006 issued to Shri Kumar, report of Inquiry Authority dated 31.8.2007, Disagreement Memorandum dated 10.01.2008, representation of Sri Kumar dated 22.01.2008 & 24.5.2008, punishment order dated 10/11.08.2008 & appeal of Shri Kumar dated 27.8.2008 against punishment order,views of Disciplinary Authority i.e. CMD, NCL and other relevant documents related to the case have been carefully gone through and considered by me and I am convinced that Shri Kumar is guilty of the charges indicated in Article I, II and III and the points raised by him in his appeal do not bear significant merit for consideration."
To impress upon the need of giving reasons while deciding a matter is very simple. Unless narration of facts, argument/objection to a decision and discussion part, even in brief is there, how a litigant is to judge and is to be satisfied that he received meaningful consideration of his case, the conclusion of which might not favour him. It is commonly said that dispensation of justice has to appear which can only be confirmed by looking into your wisdom and comparative thought to the issue which can be viewed only when it is expressed. Expression can only be in writing. No body is going to read and in fact may not be capable to read by reaching into your inner feel unless that is reduced in writing.
The need of giving reasons to a conclusion has been expressed time and again by the Apex Court.
In an old decision giving by the Apex Court in the case of Ram Chandra Vs. Union of India reported in AIR 1986 SC 1173 placing reliance on another decision of the Apex Court in Madhya Pradesh Industries Ltd. Vs. Union of India AIR 1966 SC 671, the following observations were made :
"Ordinarily, the appellate or revisional. authority shall give its own reasons succinctly; but in a case of affirmance where the original tribunal gives adequate reasons, the Appellate Tribunal may dismiss the appeal or the revision, as the case may be, agreeing with those reasons."
9. These authorities proceed upon the principle that in the absence of a requirement in the statute or the rules, there is no duty cast on an appellate authority to give reasons where the order is one of affirmance. Here, R. 22(2) of the Railway Servants Rules in express terms requires the Railway Board to record its findings on the three aspects stated therein. Similar are the requirements under R. 27(2) of the Central Civil Services (Classification, Control and Appeal) Rules, 1965. R. 22(2) provides that in the case of an appeal against an order imposing any of the penalties specified in R. 6 or enhancing any penalty imposed under the said rule, the appellate authority shall 'consider' as to the matters indicated therein. The word 'consider' has different shades of meaning and must in R. 22(2), in the context in which it appears, mean an objective consideration by the Railway Board after due application of mind which implies the giving of reasons for its decision."
In another decision given by the Apex Court in the case of The Siemens Engineering and Manufacturing Consolidation Officer. Of India Ltd. Vs. The Union of India and another reported in AIR 1976 SC 1785, the following observations were made :
"Every quasi-judicial order must be supported by reasons. That has been laid down by a long line of decisions of this Court ending with N. M. Desai v. Testeels Ltd., C. A. No. 245 of 1970 decided on 17-12-1975 (SC). But, unfortunately, the Assistant Collector did not choose to give any reasons in support of the order made by him confirming the demand for differential duty. This was in plain disregard of the requirement of law. The Collector in revision did give some sort of reason but it was hardly satisfactory. He did not deal in his order with the arguments advanced by the appellants in their representation dated 8th December, 1961 which were repeated in the subsequent representation dated 4th June, 1965. It is not suggested that the Collector should have made an elaborate order discussing the arguments of the appellants in the manner of a court of law. But the order of the Collector could have been little more explicit and articulate so as to lend assurance that the case of the appellants had been properly considered by him. If courts of law are to be replaced by administrative authorities and tribunals, as indeed, in some kinds of cases, with the proliferation of Administrative law, they may have to be so replaced, it is essential that administrative authorities and tribunals should accord fair and proper hearing to the persons sought to be affected by their orders and give sufficiently clear and explicit reasons in support of the orders made by them. Then alone administrative authorities and tribunals exercising quasi-judicial function will be able to justify their existence and carry credibility with the people by inspiring confidence in the adjudicatory process. The rule requiring reasons to be given in support of an order is, like the principle of audi alteram partem, a basic principle of natural justice which must inform every quasi-judicial process and this rule must be observed in its proper spirit and mere pretence of compliance with it would not satisfy the requirement of law. The Government of India also failed to give any reasons in support of its order rejecting the revision application. But we may presume that in rejecting the revision application, it adopted the same reason which prevailed with the Collector. The reason given by the Collector was, as already pointed out, hardly satisfactory and it would, therefore, have been better if the Government of India had given proper and adequate reasons dealing with the arguments advanced on behalf of the appellants while rejecting the revision application."
We can refer another recent decision of the Apex Court given in the case of MMRDA Officers Association Kedarnath Rao Ghorpade Vs. Mumbai Metropolitan Regional Development Authority and another reported in (2005) 2 SCC 235 which is to the following effect :
"4. We find that the writ petition involved disputed issues regarding eligibility. The manner in which the High Court has disposed of the writ petition shows that the basic requirement of indicating reasons was not kept in view and is a classic case of non-application of mind. This Court in several cases has indicated the necessity for recording reasons."Disclaimer: The text is computer generated. The user must verify the authenticity of the extracted portion with the original.
"5. Even in respect of administrative orders Lord Denning, M.R. in Breen v. Amalgamated Engg. Union [ (1971) 1 All ER 1148 : (1971) 2 QB 175 : (1971) 2 WLR 742 (CA)] observed: (All ER p. 1154h) "The giving of reasons is one of the fundamentals of good administration." In Alexander Machinery (Dudley) Ltd. v. Crabtree [ 1974 ICR 120 (NIRC)] it was observed:
"Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision-taker to the controversy in question and the decision or conclusion arrived at."
Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to reason is an indispensable part of a sound judicial system. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out reasons for the order made, in other words, a speaking-out. The "inscrutable face of the sphinx" is ordinarily incongruous with a judicial or quasi-judicial performance (Chairman and Managing Director, United Commercial Bank v. P.C. Kakkar."
To sum up the aforesaid aspect another recent decision of the Apex Court given in the case of Divisional Forest Officer, Kothagudem and others Vs. Madhusudhan Rao, reported in (2008) 3 SCC 469 can be referred and the observations as made in para 19 and 20 will be useful to be quoted here :
"19. Having considered the submissions made on behalf of the respective parties and also having regard to the detailed manner in which the Andhra Pradesh Administrative Tribunal had dealt with the matter, including the explanation given regarding the disbursement of the money received by the respondent, we see no reason to differ with the view taken by the Administrative Tribunal and endorsed by the High Court. No doubt, the Divisional Forest Officer dealt with the matter in detail, but it was also the duty of the appellate authority to give at least some reasons for rejecting the appeal preferred by the respondent. A similar duty was cast on the revisional authority being the highest authority in the Department of Forests in the State.
Unfortunately, even the revisional authority has merely indicated that the decision of the Divisional Forest Officer had been examined by the Conservator of Forests, Khammam wherein the charge of misappropriation was clearly proved. He too did not consider the defence case as made out by the respondent herein and simply endorsed the punishment of dismissal though reducing it to removal from service.
"20. It is no doubt also true that an appellate or revisional authority is not required to give detailed reasons for agreeing and confirming an order passed by the lower forum but, in our view, in the interests of justice, the delinquent officer is entitled to know at least the mind of the appellate or revisional authority in dismissing his appeal and/or revision. It is true that no detailed reasons are required to be given, but some brief reasons should be indicated even in an order affirming the views of the lower forum."
On consideration of the entire facts and totality of the circumstances we can safely say that it is a case where appellate authority has not exercised its powers as conferred and appeal has been just dismissed in a summary and cursory manner, and therefore, claim/contention of the petitioner is to receive fresh attention by the appellate authority.
We are not persuaded by the argument of either of the sides to exercise the powers of the appellate authority by going into the materials so as to form a final opinion either way.
Accordingly, this writ petition succeeds and is allowed in part and the impugned order of the appellate authority dated 10/11.8.2008 is hereby quashed. The appellate authority is called upon to attend the matter as and when certified copy of this order along with a request is presented by either of the sides and to decide the same with all expedition at its command preferably within a period of three months from the date of receipt of the move without being influenced by any observation, if it has come in this judgment either way.
Date: 06.01.2012 M.A.A