Q /! . T'i HIOHCOURTOF.CHHATTiSGARH AT .;ys : Hon'ble it Petition No. 2563 of 2004 ^lgR^^^g7!" IRwlPNT ^'1^1 li SATfi Sd/- Acting Chief Justice Sd/- satish K. Agnihotri Judge -«• 'o ' /Olfi Sd/- °/01/20^ Ijl HIGH COURT OF CHHATTISGARK AT BILASPUR DIVISIONBENCH CORAM: HOiSi'BLE SHRI JAGDISH BHALLA, Ag. C.J. & HON'BLE SHRI SATISH K. AGNSHOTRI. J. WritPetition No. 2563 of 2004. Petitioners 1. SuDerintendent, Post Office (Disciplinary Auth.) Raigarh(C.G.) 2. Director (Appellate Authority) Postal Services, Raipur(C.G.). 3. Union of India, Through Member (P) (Reviewing Authority) Postal Services Board, Das Bhavan, Parliament Street, New Delhi. Versus Prakash Chandra Mishra, Aged about 48 years, S/o Shri Satya Narayan Mishra, Retd. Sub Post Master, Post Office, Goderipara, District: Korea (C.G.). Writ Petition under Artjdes 226/227 ofthe Constitution of India Present: Shri S.K. Beriwal Centra! Government Standing Counsel with Shri A.K. Baraik, counsel for the petitionsrs. Shri R.S. Marhas, counsel for the respondent. Respondent: JUDGMENT tk. (Delivered on ^0_'January, 2008) The following Judgment of the Court was delivered by Hon'ble Jagdish Bhalla, Ag. C.J. : This writ petition is directed against the order of the Centra! Administrative Tribunal, Jabaipur Bench, Cireuit Camp Bilaspur (hereinafter referred to as " the Tribuna!") dated 17th March, 2004 whereby the order of compulsory retirement and the orders in appeal 3^ and revision, passed by the Disciplinary Authority, Appellate Authority & Revisional Authority, respectively were set aside with'a direction to the authorities to impose any penalty on the applicant/respondent other than compulsory retirement, removal and dismissal. It was further ciarified that the intervening period shall be regularized as per the rules. The applicanVrespondent, a Central Government employee working as Posta! Assistant was charge-sheeted. An Enquiry Officer was appointed to investigate about the charges. The Enquiry Officer concluded his enquiry and found one of the charges to be proved. However, the Disciplinary Authority did not agree with the finding in respect of charge No.2 and recorded its finding hoiding the same to be proved. Aggrieved by the same, the applicant/ respondent filed an appeal. The Appellate Authority by its order dated 25.08.1998 rejected the appeai. Thereafter, a revision was fi!ed by the applicanV respondent and the said revision was rejected by the Revisional Authority by its order dated 13.07.1999. Aggrieved by the above orders, the applicant/ respondent approached the Tribunal. After giving full oppoUunity and hearing to the parties, the Tribunal ailowed the Original Appiication and quashed the three impugned orders referred to hereinabovewith certain directions. Aggrieved by the order passed by the Tribunal, the petitioners have fited this writ petition f'nfer alia on the ground that charge No.1 was found to be proved and was never questioned before the Tribunal, therefore, the Disciplinary Authority had rightly imposed the penalty proportionate to the charge and accordingly the Tribunal could not have interfered in the matter. It was contended on behalf of the petitioners that as far as charge No.2 is concerned, the Disciplinary Authority did not agree with the finding of the Enquiry Officer which was based upon the material and no prejudice was caused to the applicant, as such the Tribunal erred in showing interference in the matter. It was further contended that the Tribunal has faiied to apply its mindand only because of some technical infirmities had directed to impose lesser punishment to the applicant/respondent; therefore, the judgment of the Tribunai is bad in law. It was also submitted that the Tribunai has no jurisdiction to show interference with the penalty awarded in the disciplinary proceedings and in support has reiied upon the judgment of Hon'bie Apex Court in She matter of Union of India vs. Parma Nanda - (1989) 2 SCC 177. The said judgment was not available with learned counsel for the petitioners, however, we have examined the same. The reievant portion of the said j.udgment is as under: " We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appeitate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utteriy pen/erse. It is appropriate to remember that the power to impose penalty on a deiinquent officer is conferred on the competent authority either by an Act of legislature or ruies made under the proviso to Articte 309 of the Constitution. if there has been any enquiry consistent with the rules and in accordance with principles of natural justice what punishment woutd meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penarty can lawfuliy be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its ovvn discretion for that of the authority. The adequacy of penalty unless it is malafide is certainlv not a matter for the Tribunal to concern itself with. The Tribuna! also cannot interfere with the penalty if _-the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter." It was argued on behalf of the petitioners that the Tribuna! could have interfered only in case the applicant had been djsmissed or removed or reduced in rank solely on the basis of conviction by a criminal Court, but in the case in hand the punishment order was based on the findings of disciplinary proceedings, and as such the Tribunal committed error of law in showing interference by setting aside the order of punishment. It was further argued on behalf of the petitioners that the Tribunal went out of jurisdiction by accepting the allegation of malice against K.L. Sharma who was material witness and had issued the charge-sheet to the applicant, and in the process ignored the fact that K.L. Sharma was transferred on 22.06.1993 i.e. after two months of issuance ofthe charge-sheet to the applicant. Learned counsel for the respondent Shri R.S. Marhas supported the judgment of the Tribunal and submitted that K.L. Sharma was a material witness,therefore, he shou'd have excluded himself and should have also refrained from issuing the charge-sheet which was in contravention of the instructions issued by the DGP&T's Memo No.S/64/64-Disc. Dated 27.01.1965. It was further submitted that there was a violation of Rule 15 (2) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965, which is as under : "that the Diseiplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the Disciplinary Authority or where the Disciplinary Authority is notthe Inquiring Authority, a copy of the report of the Inquiring Authority together with its own tentative reasons for disagreement, if any, with the findings of Inquiring Authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authoritv within 15 days, irrespective of whether the report is favourable or not to the Government servant." It was also pointed out that no reason for disagreement with the finding of the enquiry officer was recorded with respect to charge No.2. In premise, learned counsel for the respondent submitted that the illegality in the basic proceedings cannot be justified or legalized by the authority on the ground that K.L. Sharma was transferred. Leamed counsel reiterated the judgment of the Hon'ble Apex Court in Tilak Chand Magatram Obhan vs. Kamala Prasad Shukla and others - (1995) Supp; (1) SCC 21. The relevant portion of the said judgment is as under: 4. Mr Bobde first invited our attention to the observation made by Lord Reid in Ridge v. Baidwin 1 at p. 81 to the following effect: "I need not consider what the result would have been if the Secretary of State had heard the case for the appeilant and then had given his own independent decision that the appellant should be dismissed." Mr Bobde submitted that inherent in this obsen/ation is the view that the defect could have been cured if the Secretary of State had made the final decision on the basis of the record without being influenced by the decision impugned before him. We do not think that it would be permissible to draw such an inference. That cannot be said to be the ratio of the decision. The learned Judge himself says in so many Words that he does not consider what would have been the result if the Secretary had given his independent decision. The decision could have gone one way or the other. Therefore, the above % observation does not help Mr Bobde. If the defect is one which goes to the root of the matter and which is incurable it cannot be remedied by the higher authority taking a decision independent of the authority that rendered the initial decision. In Leary v. National Unton of Vehicle Builders 2_it was conceded that the disciplinary authority had not followed the requirements of natural justice. The question which was posed for consideration was : Can a deficiency of naturat justice before a trial tribunal be cured by a sufflciency of natural justice before an Appellate Tribunal? Megarry, J., after stating that the sheet should be made as clean as possible; 1 think it should be the same sheet and not a different one, proceeded to add at p. 720 as under: "IT the rules and the law combine to give the member the right to a fair trial and the right of appeal, why should he be told that he ought to be satisfied with an unjust trial and a fair appeal? Even if the appeai is treated as a hearing de novo, the member is being stripped of his right to appeal to another body from the effective decision to expel him.! cannot think that natural justice is satisfied by a process whereby an unfairtrial, although not resultlng in a valid expulsion, will nevertheless have the effect of depriving the member of his right of appeal when a valid decision to expel him is subsequently made. Such a deprivation would be a powerful result to be achieved by what in law is a mere nullity; and it is no mere triviality that might be justified on the ground that naturai justice does not mean perfect justice. As a general rule, at all events, 1 hold that a failure of natural justice in the trial body cannot be cured by a sufficiency of natural justice in an appellate body." But the learned counsel pointed out that in CaMn v. Carr 3_the aforesaid observations from Leary were described as too generally stated. Their Lordships pointed out that it afRrms a principle which may be found correct in a category of cases but to seek to apply it generaily would tantamount to overlook, what in the end is a fair decision, notwithstanding some initial defect. There is, however, a distinction between a defect in the enquiry and a lapse which almost destroys the enquiry. Where the lapse is of the enquiry being conducted by an officer deeply biaseci against the delinquent or one of them being so biased that the entire enquiry proceedings are rendered void, the appellate authority cannot repair the damage done to the enquiry. Where one of the members of the Enquiry Committee has a strong hatred or bias against the delinquent of which the other members know not or the said member is in a position to inftuence the decision- making, the entire record of the enquiry will be slanted and any independent decision taken by the appellate authority on such tainted record cannot undo the damage done. Besides where a delinquent is asked to appear before a committee of which one member is deeply hostile towards him, the delinquent woutd be greatty handicapped in conducting his defence as he would be inhibited by the atmosphere prevaiiing in the enquiry room. Justice must not only be done but must aiso appear to be done. Would it so appear to the delinquent if one of the members of the Enquiry Committee has a strong bias against him? And we repeat the bias must be strong and hostile and not a mere ailegation of bias of a superior having rebuked him in the past or the like. Such is the view taken in a recent decision of this Court in Rattan Lal Sharma v. Managjng Committee, DrHari Ram (Co-educational) Higher Secondary Scfwol 4_. That was a case where the enquiry was alleged to be vitiated on account of violation of the rules of natural justice due to the presence of a person who was strongly biased against the delinquent. While dealing with this contention this Court observed : (SCC p. 22,para 12) U2^ .-^(WIIU-i "The learned Single Judge, in our view, has rightly held that the bias of Shri Maru Ram, one ofthe members of the enquiry committee, had percolated throughout the enquiry proceedings thereby vitiating the principles of natural justice and the findings made by the enquiry committee was a product of a bias and prejudiced mind. The itiegality committed in conducting (he departmental proceedings has left an indelible stamp of infirmity on decision of the Managing Committee since affirmed by the Deputy Commissioner and the Commissioner." In this view of the matter this Court concluded that the decision of the appellate authorities could not cure the initial defect in the constitution of the Enquiry Committee and the consequences flowing from one of the membere ofthe Enquiry Committee being biased. In this view ofthe matterthis Court had allowed the appeai." We are of the consideredopinion that the illegality committed by the materiai witness byissuing the charge-sheet cannot toe cured on the ground that subsequently the said officer was transferred. In these circumstances, the exception indicated in the judgment referred hereinabove creates exceDtional cireumstances to show interference. We lurther find that it was incumbent upon the authoritiesto record reasons for disagreement and opportunity should have been afforded to the applicant/respondent, which was not done, as such there is a violation of principles of natural justice. We have examined the reasons recorded by the learned Tribunal while allowing the original application andwe findforce and are in agreement with the same. !n the light ofabove discussipn, we do not find any ground to show interference under extraordinary writjurisdiction. Accordingly.the writ petition is dismissed. ^l—,,-.— —^—^- Sd/- Acting Chief Justice ill^L^I Sd/- Satish K. Agnihotri Judge