CHH HCN/A
SUNIL KUMAR TIWARI - Appellantv.STATE OF CHHATTISGARH, THROUGH SECRETARY, DEPARTMENT OF SCHOOL EDUCATION, MANTRALAYA, DAU KALYAN SINGH BHAWAN, RAIPUR - Respondent
CHHATTISGARH HIGH COURT·13 Jul 2018·( P. Sam Koshy, J. )
Case No.
Decided On
Judges
Bench
Advocates
Citation
Statutes
Result
writ petitiondepartmental enquirypunishmentincrementsappealnon-speaking orderapplication of mindcivil services rulesreasonsnatural justice
Challenge to a punishment order (stoppage of increments) and the rejection of the appeal against it, primarily focusing on the lack of reasoned decision by the appellate authority.
An appellate order must demonstrate due application of mind and cannot be a mere formality or a one-line rejection. Authorities exercising quasi-judicial functions are legally obligated to provide reasons for their decisions, especially when rejecting an appeal, to ensure fairness, transparency, and allow for effective judicial review.
1.JUDGMENT/ORDER
2.P. Sam Koshy, J. - Challenge in the present writ petition is to the order dated 1.11.2008, Annexure P-19, whereby the petitioner has been inflicted with an order of punishment of stoppage of two increments with cumulative effect and the challenge also is to the order dated 24.8.2009, Annexure P-1, whereby the appeal preferred against the order of punishment has been rejected.
3.In addition to the grounds of challenge to the impugned order of punishment, the petitioner also assails the order of appellate authority, stating that the order of the appellate authority is a non-speaking order and that it has been passed in a mechanical manner in total non-application of mind and without discussion whatsoever except for a one line order of rejection.
4.Facts leadings to the writ petition are that the petitioner was issued with a charge-sheet whereby so far as charge no.1 is concerned, it was charged that the petitioner accompanied a team from Chhattisgarh in the National School Games held at Goa without any prior sanction, permission or authority to the competent authority thereby committing a misconduct as is envisaged under Rule 3 of the Chhattisgarh Civil Services (Classification, Control & Appeal), Rules 1965. Charge no.2 was that of misbehaving with a female traveler inasmuch as removing the mobile phone of the said lady traveler and putting it in the bag of one of the women football players from Bilaspur zone and thereby causing an unruly scene in the train.
5.Initially, a preliminary enquiry was conducted and thereafter a departmental enquiry was also conducted and the disciplinary authority vide its order dated 1.11.2008 found the petitioner guilty of charge no.2 and inflicted him with a punishment of stoppage of two increments with cumulative effect. So far as charge no.1 is concerned, the petitioner was exonerated of the charge.
6.Against the order of punishment dated 11.11.2008 the petitioner preferred an appeal on 5.1.2009. Though the appeal was promptly filed, no decision was taken by the appellate authority which led to the filing of a writ petition before this Court vide W.P.S. No. 3179/2009. The said writ petition got disposed of on 7.7.2009 at the instance of the petitioner with a direction to the appellate authority to decide the appeal as expeditiously as possible preferably within a period of two months from the date of issuance of the order of the High Court. Pursuant to the directions given by this Court, the impugned order has been passed.
7.It is pertinent to take note of the contents of the order of the appellate authority dated 24.8.2009, Annexure P-1, which is decided by a single liner :-
8.It is this order which is under challenge in the present writ petition
9..
10.Considering the grounds of challenge raised by the petitioner, firstly the appellate authority order being a non-speaking order this Court is inclined to decide that issue first. That on perusal of record and the order of the appellate authority which has been reproduced in the preceding paragraph it clearly reflects that there is absolutely no application of mind by the officer concerned. From the manner in which the appeal has been decided it appears that the appellate authority, an officer of the rank of an Additional Secretary in the School Education Department, has decided the appeal only to circumvent the order passed by this Court on 7.7.2009 in W.P.S. No. 3179/2009. It appears that the appellate authority does not even know the basics of the powers which are conferred upon the appellate authority.
11.It is now a well settled position of law that even if the officers on the administrative side while deciding the appeal are required to give reasons while either allowing an appeal or rejecting the same. The manner in which the appeal has been decided shows the callous approach of the concerned appellate authority who has not even cared to read or consider the contentions which the petitioner has raised in his appeal.
12.Rule 27 of the Chhattisgarh Civil Services (Classification, Control & Appeal) Rules, 1966 deals with consideration of appeal. For ready reference, sub Rule 2 of Rule 27 is reproduced herein under :-
13.From the aforesaid rule position itself it is evidently clearly as to what the intentions of rule makers were while providing a provision of appeal on the departmental side. It also is explicit as to what were the duties which are otherwise conferred upon the appellate authority while deciding an appeal of an employee who has been inflicted with a penalty.
14.At this juncture, it would be relevant to refer to a judgment of the Madhya Pradesh High Court in the case of Raj Kapoor Singh Parihar v. State of Madhya Pradesh & Others, (2014) LawSuit(MP) 196 decided on 6.3.2014 in W.P. No. 2760 of 2013, where in paragraph 10 it was held that :
15."10. The appellate order suffers from same illegality and infirmity. As per Rule 27 of CCA Rules, the appellate authority is obliged to examine the procedural part of the enquiry, perversity of finding and also the proportionality in imposing punishment. The petitioner preferred a detailed appeal running in 15 pages. The said appeal is rejected by a single stoke of pain by holding that the petitioner has not made effort to stop illegal mining. The grounds taken by the petitioner in his appeal memo are not dealt with by the appellate authority. This runs contrary to the judgment of Supreme Court in (Ram Chander vs. Union of India and others, (1986) 3 SCC 103), followed by this Court in (Mohemmad Idris vs. Registrar General of MP High Court, Jabalpur and others, (2005) 2 MPLJ 51). Recently, the Apex Court followed this view in (Chairman, Life Insurance Corporation of India and others vs. A/ Masilamani, (2013) 6 SCC 530). Thus, the appellate order is also illegal and cannot be permitted to stand. In the opinion of this Court, even if the petitioner has committed any error or misconduct, the respondents are bound to establish it by conducting enquiry in accordance with law. Without conducting proper enquiry, no punishment order can be permitted to stand. "
16.It is also relevant to quote at this juncture the judgment of the Hon'ble Supreme Court in the case of Narinder Mohan Arya v. United India Insurance Co. Ltd. & Others, (2006) 4 SCC 713, wherein dealing with powers of the appellate authority and the manner in which an appeal has to be decided, the Hon'ble Supreme Court in paragraph 32 to 37 has held as under:-
17."32. The appellate authority, therefore, while disposing of the appeal is required to apply his mind with regard to the factors enumerated in subrule 2 of Rule 37 of the Rules. The judgment of the civil court being inter parties was relevant. The conduct of the appellant as noticed by the civil court was also relevant. The fact that the respondent has accepted the said judgment and acted upon it would be a relevant fact. The authority considering the memorial could have justifiably came to a different conclusion having regard to the findings of the civil court. But, it did apply its mind. It could have for one reason or the other refused to take the subsequent event into consideration, but as he had a discretion in the matter, he was bound to consider the said question. He was required to show that he applied his mind to the relevant facts He could not have without expressing his mind simply ignored the same.
18.An appellate order if it is in agreement with that of the disciplinary authority may not be a speaking order but the authority passing the same must show that there had been proper application of mind on his part as regard the compliance of the requirements of law while exercising his jurisdiction under Rule 37 of the Rules.
19.In Apparel Export Promotion Council V. A.K. Chopra, (1999) 1 SCC 759 which has heavily been relied upon by Mr. Gupta, this Court stated:
20."16. The High Court appears to have overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authorities."
21.The appellate authority, therefore, could not ignore to exercise the said power.
22.The order of the appellate authority demonstrates total nonapplication of mind. The appellate authority, when the rules require application of mind on several factors and serious contentions have been raised, was bound to assign reasons so as enable the writ court to ascertain as to whether he had applied his mind to the relevant factors which the statute requires him to do. The expression 'consider' is of some significance. In the context of the rules, the appellate authority was required to see as to whether (i) the procedure laid down in the rules was complied with; (ii) the Enquiry Officer was justified in arriving at the finding that the delinquent officer was guilty of the misconduct alleged against him; and (iii) whether penalty imposed by the disciplinary authority was excessive.
23.In R.P. Bhatt V. Union of India, (1986) 2 SCC 651 this Court opined:
24."4. The word "consider" in Rule 27(2) implies "due application of mind". It is clear upon the terms of Rule 27(2) that the Appellate Authority is required to consider (1) whether the procedure laid down in the Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure of justice; (2) whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc. the penalty, or may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the Appellate Authority to consider the relevant factors set forth in clauses (a), (b) and (c) thereof.
25.There is no indication in the impugned order that the Director General was satisfied as to whether the procedure laid down in the Rules had been complied with; and if not, whether such non-compliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director General has also not given any finding on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. It seems that he only applied his mind to the requirement of clause (c) of Rule 27(2) viz. whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non-compliance with the requirements of Rule 27(2) of the Rules, the impugned order passed by the Director General is liable to be set aside."
26.So far as the issue of the order to be a speaking order is concerned, the requirement of the same is for the reason that the delinquent employee should know the reasons on which his appeal is either allowed or rejected. The question regarding recording of reasons, its importance and necessity came up for consideration before the Hon'ble Supreme Court in case of Kranti Associates Private Limited & Another v. Masood Ahmed Khan & Others, (2010) 9 SCC 496, wherein the Hon'ble Supreme Court has extensively and elaborately dealt with the issue of need of giving reasons.
27.Similarly, in the case of East Coast Railway and Another v. Mahadev Appa Rao and Others with K. Surekha Vs. Mahadeo Appa Rao and Others, (2010) 7 SCC 678, the Hon'ble Supreme Court in very categorical terms has held that Arbitrariness in making of an order by an authority can manifest itself in different forms. Every order passed by a public authority must disclose due and proper application of mind by the persons making the order. Application of mind is best demonstrated by disclosure of mind by the authority making the order and disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable. In the absence of reasons in support of the order it is difficult to assume that the authority had properly applied its mind before passing of the order.
28.Likewise, again in case of Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota v. Shukla and Brothers, (2010) 4 SCC 785, the Hon'ble Supreme Court has held that, recording of reasons is an essential feature of dispensation of justice. Reasons are the soul of orders. Nonrecording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. A judgment without reasons causes prejudice to the person against whom it is pronounced, as that litigant is unable to know the ground which weighted with the authority in rejecting his claim and also causes impediments in his taking adequate and appropriate grounds before the higher court in the event of challenge to that order.
29.In view of the aforesaid legal position as it stands and when we read the impugned order, Annexure P-1, it clearly reflects that the authority who has decided the appeal does not have the basic knowledge or is not aware of the powers of the appellate authority which otherwise he was exercising and the same is thus not sustainable in law and deserves to be and is accordingly set aside.
30.The writ petition accordingly stands allowed to the aforesaid extent, reserving the right of the appellate authority to decide the appeal of the petitioner objectively considering all the contentions that the petitioner has raised in his appeal afresh and pass an appropriate order as expeditiously as possible within an outer limit of 90 days from the date of receipt of the order of this Court.
31.It shall be the responsibility of the petitioner to place the order of this Court before the appellate authority at the earliest for an early disposal of appeal.
32.The writ petition stands allowed and disposed of accordingly.
33.Final Result : Disposed
['Raj Kapoor Singh Parihar v. State of Madhya Pradesh & Others, (2014) LawSuit(MP) 196', 'Ram Chander vs. Union of India and others, (1986) 3 SCC 103', 'Mohemmad Idris vs. Registrar General of MP High Court, Jabalpur and others, (2005) 2 MPLJ 51', 'Chairman, Life Insurance Corporation of India and others vs. A/ Masilamani, (2013) 6 SCC 530', 'Narinder Mohan Arya v. United India Insurance Co. Ltd. & Others, (2006) 4 SCC 713', 'Apparel Export Promotion Council V. A.K. Chopra, (1999) 1 SCC 759', 'R.P. Bhatt V. Union of India, (1986) 2 SCC 651', 'Kranti Associates Private Limited & Another v. Masood Ahmed Khan & Others, (2010) 9 SCC 496', 'East Coast Railway and Another v. Mahadev Appa Rao and Others with K. Surekha Vs. Mahadeo Appa Rao and Others, (2010) 7 SCC 678', 'Assistant Commissioner, Commercial Tax Department, Works Contract and Leasing, Kota v. Shukla and Brothers, (2010) 4 SCC 785']