•>j BEFCRE THE HONB'B®STATE ADMXNISraATIVE 1RIBUNAL BVSCH RAIRffi (^ p(^) 3 ^> /c(/' ^^ O.A. No. < /2001. APH.ICANT * NC^I-APR.igAS'PS 8 Kamal Ram ihakur aged 52 years s/o Late Nalcehar Ram 'lhakHr. Ex-Conatable So«96 I'ollce Stttton Nohan Nagar. StJRS, Tahall and Bfstt. OWO. WBRS8S. <l) 1t>e state of ehhatttsgarb ^IuToiaigta tbe SeaFetary. Hene D®PBFta*nt» Seeretarlate BulldiRg (eid D.K .Hospltal) . (2^Snsp»etor Setierai ef Pol.ie·. RAIPOR. (3l yOlstrlct Supertatendaat of Bollce, DCRG. APH.TGATT£»W/S 19 OP THE ABMTNISmATryE TOIBBNM. ACT 1985. The partteulars of the appllcatioa are eafealogued aa under 8— (1) Haneof the appllcant 2 Aa narrated aboye. (2> Naine of th« Heu~»BpllcaBt 8 As Barratad above. contd..2 ^'^ f" .tfy»^%, 'ii-^.^ •?'> '•: ^ '% 1 ^I ^y ^/ "'K ,^<.l" ^ <p s t APPLICANT HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0.3614/2005 Kamal Ram Thakur RESPONDENTS Versus The State of Chhattisgarh and others Single Bench: Hon'ble ShnManindra IVIohan Shrivastava, J. Present: - Shri Somkant Verma, counsel for the petitioner. Shri Chandresh Shrivastava, Panel Lawyer for the State/respondents. --<< ORALORDER >rd (Passedon this 23ra day of March, 2010) By this petition, the petitioner has assailed legality and validity of order dated 29-12-2000 (AnnexureATS) passedby the Superintendent of Pplice, Durg, by which, penalty of dismissal from service has been imposed. The petitioner has also challenged the order dated 23-02-2001 (Annexure A-5), by which, the appellate authority has dismissed the appeal. (2) Briefly stated the facts of the case are that charge sheet was issued to the petitioner on 18-09-2000 ontheallegatioh thatthe petitionei^ recovered an ^mount of Rs.60,000/- from one S. K. Thakur, by assuring him to secure employment for his son. After completion of departmental enquiry, the Enquiry Officer submitted an enquiry report, in which, charges levelled against the petitioner were found proved. Along with a copy of enquiry report, notice was issued to the petitioner granting him opportunity to submit his representation on the findings recorded by the Enquiry Officer. Relying uponthe enquiry report and agreeing with the findings recorded by the Enquiry Officer, the disciplinary authority —Superintendentof Police, Durg, vide order dated 29-12-2000 imposed penalty of dismissal from service on the petitioner. Aggrieved by the said order of punishment, the petitioner preferred statutory departmental appeal €^h i->. ? s •ia" 1 :sy i f \' < on 17-01-2001 (Annexure A-4). In the said appeal, petitioner raised elaborate grounds assailing the order of penalty. The appellate authority vide impugned order dated 23-02-2001 (Annexure A-5) dismissed the appeal. Aggrieved by the same, this petition has been filed. (3) Learned counsel for the petitioner submits that the impugned order of imposition of extreme punishment of dismissal from service has been passed on false and fictitious complaint. It is argued that even though, no case was established during the enquiry, on conjectures and surmises, finding ofguilt has --6een recorded. The disciplinary authority failed to consider that the charges were improbable and not borne out. It is also submittedthat the enquiry was vitiatedwithout any proper complaint. The allegations levelled against the petitioner were vague and the complaint itself was not signed. It is also submitted that the enquiry was vitiated on account of violationof principles of natural justice, as petitioner's request for examination of defence witness was illegally rejected, which seriously prejudiced defenceof the petitioner. Enquiry was conducted by the C.I.D. Sub Inspector Shri M. M. Thakur, who came to the conclusion that allegations against the petitioner were completely false. —^i Petitioner demanded copies of the said report, but the same was also denied to him. It isalso argued that the whole departmental enquiry was vitiated on account of several illegalities, irregularities and violation of principles of natural justice. All these grounds were highlighted in the departmental appeal preferred against the order of penalty of dismissal from service, but the appeal has been dismissed mechanically without recording any reasons and without due application of mihd to the grounds raised by the appellant in his appeal (Annexure A-4). (4) Per contra, submission of learned counsel for the respondents is that petitioner was proceeded against in a departmental enquiry on serious charges of extracting money on the assurance of securing employment. During the course of enquiry, due and proper opportunity of hearing was afforded to the petitioner. It is also submitted that during the course of enquiry, evidence brought on record proved the charges against the petitioner, and therefore, dismissal of the petitioner was in accordance with law. (5) Upon perusal of the order passed by theappellate authority on 23-02- 2001 (AnnexureA-5), it is found that the only consideration made by the appellate authority is as below:- ^ f^TT'fti? ^rN ;T?(ft "3I"-"6T"; ^RT y.Rdctil, ^cIT ^Rlgl'H, €tq dSIT sn^f, spft?nsff STCT IR^ spftpr T^ ^ogro 'g'f ^t €>?^r SIEIWT ff^n 7ror i aptensff ^r K^ 22.2.2001 ^r ww tf 'ft ^IT Tran '<3^ 5T?T cRTTqT .TqT f^; ^ff^ 3Ppft SItftcT ^ uf)' ?TSq f^RsT t '3^ SraTETT X3^ TTRT ^g^ ^ f^P? ^S; 3fk ^ 11 sriteTaft gTCT SPFft SPftcT 4 ^TT -cf^ g)^f ^ 'sn 'g^ tR^r ^ ^fivn 'TV % fSwTt ^ f^ft H^R q^ 'cfPT Plddl ?t 'BT ^"^t iTf ^f5?T Tf teft IR7T7 ^t ^'ft/yRcid'-'i ten '511 '^1 sicT: ^osro 'grf grcr qifer <u^i^i ^r 'qsncRT ^TOTT 'vs^i ^; 3f4taTaff ^Pj^ STRSIcp 96 'gR^RTT ^I^; STCT IRg?)' SIiftcT R^'M cf^ STRfttl » (6) In the case of Spniram Dhruv Versus State ofMadhya Pradesh and otters, (W.P.(S.)No.1367of 2005) this Court vide order dated 05-02-2010, dealing with the identical situation where totally non-speaking orderwas passed by the appellate authority, held:- 10. Clause 213 of the Chhattisgarh Police Regulations provides that the provisions containedin C.G. Civil Services (Classification, Control and Appeal) Rules 1966shall regulate penalty and appeal in respect of police officers. It has been held by the High Court of Madhya Pradesh in the matter of Krishna Narayan Shivpyare Dixit Vs. State of M.P and others, 1985. M.P.L.J., 343 that regulations 213 does not exclude the operation of M.P. Civil Service (Classification, Control & Appeal) Rules, 1966. As no specific provisions had been made in Police Regulations to prescribe the manner in which the appeal ..y 4 f ^ 4 against the order of punishment shall be decided by the Appellate Authority, the provisions contained in C.G. Civil Services (Classification, Control & Appeal) Rules, 1966 prescribing mode and manner of exercise of appellate power by the Appellate Authority are applicable. 11. It is well settled that theAppellate Authority while considering the appeal acts in quasi-judicial capacity. Relevant provision contained in C.G. Civil Services (Classification, Control & Appeal) Rules, 1966 for consideration ofan appeal are as under:- 27. Consideration ofAppeal:- "(1) In the case of an appeal against an order of suspension, -^- the appellate authority shall GOnsiderwhether in the light of the provisions of rule 9 and having regard to the circumstances of the case.the order of suspension is justified or not and confirm or revoke the order accordingly. (2) In the case of an appeal against an order imposing any of the penalties specified in rule 10or enhancing any penalty imposed under the said rule, the appellate authority shall consider:- (a) whether the procedure laid down in these rules has been complied with ahd if not, whether such non-compliance has resulted in the violation of any provisions ofthe Constitution oflndia or in the failureofjustice; (b) whether the findings pf thedisciplinary authority are warranted by the evidence on the records; and (c) whetherthe penalty orenhanced penalty imposed is adequate, inadequate or severe, and pass orders- (i) confirming, enhancing, reducing or setting aside the penalty; or (ii) remitting the case to the authority which imposed or enhanced the penalty or to any other authority with such direction as it may deem fit in the circumstances ofthe case." .T? ~^1: ff \ ^ 12. Appellate Authority is therefore obliged under the law to exercise its statutory power of appeal in accordanee with the provisions contained in Rules 27 of the Rules of 1966. Consequently, while exercising its appellate jurisdiction, Appellate Authority is duty bound to exercise the same in the manner prescribed in Rule 27 (2) of the Rules of 1966. Rules mandatorily require the Appellate Authority to cohsider whether the procedure laid down in the Rules has been complied with and if not whether such non-compliance resulted in violation of any provision of the Constitution of India or in the failure of justice; whether findings of the disciplinary authority are warranted by the evidence on record and whetherthe penaltyimposed is adequate, ^ inadequate or severe. The Appellate Authority is therefore under statutory obligations to consider the appeal in the manner as laid down in the Rules as aforesaid and then may confirm enhance, reduce or set aside the penalty or remit the case to the Authority which imposed or enhanced the penalty or to any other Authority with such direction as deem fit in the circumstances ofthecase. Thescheme of Rule 27 therefore clearly implies that the Appellate Authority has to pass speaking order indiGating that points raised by the petitioner has been considered. In case the objection ofthe petitioner is not acceptable he has to give the reasons for not accepting thesame. It is thus the duty of Authority to apply its mind while deciding the appeal and he is obliged to give clearfinding on the charges ofthe penalty. The powers of Authority being quasi-judicial in natureare required to be performed in all seriousness with a view to do justicewith the appellant. 13. Though it is now well settled proposition of law that an Appellate Authority or Revisional Authority is not required to give detail reasons while agreeing with and confirming order passed by the Disciplinary Authority, as held in thecases ofTaraChand Khatri Vs. Municipal CorDorationofDelhi and others,1977(1) SCC 472: Divisional Forest ^fficer,Kothaaudem and others Vs. MadhusudhanRao. 2008 f3) SCC 469. but if in thescheme of the statutory rules governing terms and conditions of service such a duty is cast on Appellate Authority to give reasons even in the case of an order of affirmation, the Appellate Authority is obliged to give reasons J. by applying its mind while considering the appeal in the manner prescribed under the Rules. 14. In the case of Ram Chander Vs.Unionof India and others, 1986 (3) SCC 103 taking into consideration the Rule 22 (2) of the Railway Servants (Discipline and Appeal) Rules, 1968,Which is quite similarto the rules applicable in the present case itwas held as under:- "4. The duty to give reasons is an incident of the judicial process. So, in R.P. Bhattv. Union of India (1986 (2) SCC 651), this Court, in somewhat similar circumstances, interpreting R.27(2) of the Central Civil Services (Classiflcation, Control & Appeal) Ryles, 1965 which provision is in pari materia with R.22(2) of the Railway Servants (Discipline & Appeal) Rules, 1968, observed : "Itis clearupon theferms of R.27(2) that the appellate authority is required toconsider (1) whetherthe procedurelaid down in the rules has been complied with; and if not.whethersuch non compliance has resylted in violation of any of the provisions of the Constitution of India or in the failyre of justice ;(2)whether the findings of the disciplinary authority are warranted by the evidence 6n record ; and (3) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc. the penalty, or remit back the case to the authoritywhich imposed the same. It was held that the word 'consider' in Rule.27 (2) of the Rules implied 'due application of mind'. The Court emphasizedthat theAppellate Authority discharging quasi- judicial functions in accordance with natural justice must give reasons for its deeisions. There was in thatcase, as here, no indication in the impugned orderthatthe Director- General.Border Road Organization, New Delhi was satisfied as to the aforesaid requirements. The Court observed that he had not recorded any finding on the crucialquestion asto whether the findings of the ..Bii'l!''5'' .<<'<3E'^."f^^ '-ks. ~:^ ^ 9 / y .^ disciplinary authority were warranted by the evidence on record. In the present case, the impugned order of the Railway Boardis in these terms : "(1)1n terms of Rule 22(2) of the Railways Servants (Discipline &Appeal) Rules,1968, the Railway Board have carefullyconsideredyour appeal against the orders of the General Manager, Northern Railway, New Delhi imposing on you the penalty of removal from service and have observed as under: (a) by the evidence on record, the findings ofthe disciplinary authority are warranted ; and (b)the penalty of removal from service imposed on you is merited. (2) The Railway Board have therefore rejected the appeal preferred by you." 5. To say the least, this isjust a mechanical reproduction ofthe phraseology of R.22(2) ofthe Railwgy Servants Rules withoutany attempt on the part of the Railway Board either to marshall the evidence on record with a view to decide whether the findings arrived at by the disciplinary authority could be sustained or not. There is also no indication that the Railway Board applied its mind as to whether the act of misconduct with which the appellant was charged together with the attendant circumstances and the past record of the appellant were such that he should have been visited with the extreme penalty of removal from service for a single lapse in a span of 24 years of service. Dismissal or removalfrom service is a matter of grave concern to a civil servant who aftersuch along period of service, may not deserve such a ,harsh punishment. There being non-compliance with the requirements of R.22(2) of the Railway Servants Rules, the impugnedorder passed by the Railway Board isliable to be set aside." In the same judgment, the Supreme Court, pointing out distinction based on scheme of statutory rules relating to consideration .•/^T^^i^ y- ^ ^ •-•••^ y-\ 1 t'.y f] ^ ^ of an appeal explained as below : "8. So also in Tara Chand Khatri v. Municipal Corporation ofDelhi &0rs.. [1977]2 S.C.R. 198 this Court observed that there was a vital difference between an order of reversal by the appellate authority and an order of affirmance and the omission to give reasons for the decision may not by itself be a sufficient ground for passingsuch order, relying onthetest laid down by Subba Rao, J. in Madhya Pradesh Industries Ltd.. v. Union of India [1966] 1 S.C.R. 466. "Ordinarily, the appellate or revisional authority shall give itsown reasons succinetly; 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 ofa requirement in the statute orthe rules, there is no dyty cast on an appellate authority to give reasonswhere the order is one of affirmance. l-1ere, R. 22(2) of the Railway Servants Rules in express terms requiresthe Railway Board to record its findings on the three aspects stated therein. Similar are the requirementsunder R. 27(2) ofthe Central Civil Services (Classification, Control & Appeal) Rules, 1965. R. 22(2) provides that in thecase ofan 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'asto the matters indicated therein. The word 'consider' has different shades of meaning and must in R.22(2), in the context in which itappears, mean an objective consideration by the Railway Board after due application of mind which implies the giving of reasons for its decision. 15. Even in a case where there is no duty caste on Appellate Authority to give reasons in case of order of affirmation, Supreme il s: ^ ^ .J Court held in the case of Divisional Forest Officer. Kothagudem and others (supra). "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." 16. ' Recently in the case of Chairman, DisciDlinarv Authoritv. Rani Lakshmi Bai Kshetriva Gramin BankVs. Jagdish Sharan Varshnev and others, 2009(41 SCC 240. Supreme Court has held as under: "5. In our opinion, an order of affirmation need not containas elaborate reasons as an order of reversal, but that does not mean that the order of affirmation need not contain any reasons whatsoever. In fact, the said decision in Prabhu Dayal Grover's case (supra) has itself stated that the appellate order should disclose application of mind. Whether there'was anapplicationof mind or not can only be disclosed by some reasons, at least in brief, mentioned in the order of the appellate authority. Hence, we cannot accept the proposition that an order of affirmation need not contain any reasons at all. That order must eontain some reasons, at least in brief, so that one can know whether the appellate authority has applied its mind while afRmning the order of the disciplinary authority. 6. The view we are taking was also taken by this Court in Divisional Forest Officer vs. Madhusudan Rao, JT 2008 (2) SC 253 (vide SCC para-20: JT para-19), and in Madhya Pradesh Industries Ltd. vs. Union of India, AIR 1966 SC 1 10 i 671, siemens Engineering & Manufacturing Co. of India Ltd. vs. Union of India, AIR 1976 SC 1785 (AIR para 6), etc. 7. In the present case, since the appellate authority's order does not contain anyreasons, it does not show any application of mind. 8. The purpose of disclosure of reasons, as held by a Constitution Bench of this Court in the case of S.N.Mukherjee vs. Union oflndia reported in (1990) 4 SCC 594 :1990 SC (Cri.)669, is that people must have confidence in the judicial or quasi-judicial authorities. Unless reasons are disclosed, how can a person know whether the authority has applied its mind ,or not? Also, giving of reasons minimizesthechancesofarbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosedin ajudicia] or quasi-judicial order, even if it is an orderof affirmation. 9. No doubt, in S.N.Mukherjee's case (supra), ithas been observed ("SCC p 613, para 36)) that: 36 "..The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or- revisional authority agrees with the reasons contained m the order under challenge." The above observation, in our opinion, really means thatthe order of affirmance need not contain an elaborate reasoning as contained in the order of the original authority, but it cannot be understood to mean that even brief reasons need not be given in an order of affirmance. To take a contrary view Would mean that appellate authorities can simply dismiss appeals by one line orders stating that they agree with the view of the lower authority. 10. For the same reason, the decision of this Court in State of Madras vs. Srinivasan, AIR 1966 SC 1827 (vide 1 "^iisl ^'. y. ; ^ 11 1 ITumati AIR para 15)) has alsoto be understood as explained by us above." (7) Ifthe order passed by the AppellateAythority isscrutinized by applying aforesaid princjple of law lajd down keeping in view statutory requiremeht as to the mariner ofconsideration ofan appeal, it leads to inevitable conelusibn that the order passed by the Appellate Aythority does not contain any reason whatsoever and is a mechanical affirmation without cbnsidering the appeal according to the statutory serviee rules much less apRlieatipn of mind to the /sipecific grounds raised by the petitioher in his appeal. Therefore, the prder passed by the Appellate Authority affirming the order passed jn appeal is clearly uhsustainable in lawand liabletobesetasicie. (8) In view of the aBove finding, T do not prQpose to go into .other aspects of the matter relating to validity of the order of punishment recorded by the Disciplinary Authority on the grpund raised by the petitioner in the petition as argued by learned counsel forthe petitioner. (9) Following the order of Supreme Court in the case of Chairman, / Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. ^.•agdish Sharan Varshney (supra) this petition is partly allowed and the impugned order dated 23-02-2001 (Annexyre A-5) is hereby set aside. The matter is remanded to the Appellate Authority to decide theappeal filed by the petitioner afresh in accordance with law. Taking ihto consideration the fact fhat tte order df punishment was imposedwaybackon 29-12-2000, it is further directed that the appeal shall be decided by the Authority as expeditiously as possible not later than 4 monfhs from the dafe of receipt of copy ofthis order. Noorder as tocosts. ' Sd/- ; .,:; ManindraMohan Shrjvastava Judge ;.^<i--...