T •^&.w^w^.f''^ t 1 1 ^I^OS^ iN FH£ M<<:^iy'A PtiADESrl s5TAi£ AuAii.^ISTRAT.IV^ TEIBUisiAL UAA.NOj. OF . ASS^ . J395 ^ffpA-LG^T s". ^ a£SPOi^£ENTSi- Shri Kumar Dwivedi^ WHSU^ The State of Maahya Pradesh an<d Q'thers^ DETAB-&_OF.,,^H,,AC,ATiW s - !• ^ilAiSyAAE^M-^M^&aU&SQt S~ (i) Name of the appXxca^t i Shri Kumar Dwivedi; ^ii) Name ^x Father , ^ Hari H®iJi'D^vivedi; (iii) Age ^z 'fche ^plicant ^ 53. years^ Civ) yesignati^n aod particulars ^f efficel: Nai e and .stati^n)' ini which einpleyeq/1 ^r was last . e^iployecl befQre ceasing to, be io services^ Assistant Devel^pment £xtensi©nOfficer^- (V) (vi) Office Address Block Development Office Shankar Garh 'Dlstt^ Sarguja^ te^P* Address for service ©f Netice as. above^ 2» 'Partlculars of ;the &©spondent^- (i) t©(vi) X^ The State of M»P» through Secretary Panchayat an^ Bural Development Department Vallabh Bliawan Bhopal^ M»P^ 2» The Commissioner Bilaspur Divisi^n^ Bilaspur^ M^P^ 3» The C©liect©r Sarguja, ^3^;< ^mbikapur Distt^ 5ar9uj.@^M»P<.. 4* The Departal Enquiry Offlcer. CQllector8 s Oflfice Sarguja^ ^blkapur" Distt^ S arguj aAj^P} StSiSa.SsSS-aai-.isSS HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0.1100/2005 APPLJCANT Shri Kumar Dwivedi RESPONDENTS Versus State of Madhya Pradesh and another Sinale Bench: Hon'ble Shri Manindra Mohan Shrivastava. J. FOR PRONOUNCMENT QF ORDER i Sd/- Manindra Mohan Shrivastava Judge HIGH COURT OF CHHATTISGARH :BILASPUR WRIT PETITION (Sl N0.1100/2005 APPLICANT Shri Kumar Dwivedi RESPONDENTS Versus State of Madhya Pradesh and others Sinale Bench: Hon'ble Shri Manindra Mohan Shrivastava. J. Present: - Shri V. K. Pandey, counsel for the petitioner. Shri Ajay Dwivedi, Deputy Govt. Advocate for the State/respondents. ORDER (Passed on this '^ dav of March, 2010) By this petition, the petitioner has called in question memo dated 14-03-1990 (Annexure A-1) instituting departmental enquiry by issuance of a charge sheet, order dated 31-10-1994 (Annexure A-8) imposing penalty of removal from service and order dated 27-03-1995 (Annexure A-13) by which petitioner's appeal against the order of penalty has been dismissed. (2) Case of the petitioner is that while the petitioner was posted and working as Assistant Development Extension Officer at Lakhanpur, a departmental enquiry was instituted against him by issuance of a charge sheet on 14-03-1990 (Annexure A-1). The petitioner submitted an application on 26-03-1990 demanding certain documents which were followed by reminders dated 24-05-1990 and 23-07-1990 but instead of supplying the documents, the petitionerwas subjected to transfer. Thereafter, the petitioner submitted his reply to the charge sheet though documents were not supplied. Thereafter, the petitioner did not hear anything about the further progress of the enquiry. The petitioner received the order passed by the Commissioner, Bilaspur Division, Bilaspur dated 31-10-1994 (Annexure A-8) along with covering memo issued by .M. ^ ,.^SP^"^1 i ^5" the Collector, Sarguja (Annexure A-7) on the same date. By the said order, the Commissioner has imposed penalty of removal from service on the petitioner. After issuance of the order, the petitioner obtained certified copy of the order sheets from 04-01-1990 to 23-01-1995 of File No.44 of 1994, from which, he came to know for the first time that he was given punishment of stoppage of increment by the Collector on 17-10-1993, but the same was reviewed by the Commissioner without any authority, without issuing notice to the petitioner and without due application of mind before inflicting punishment, which ultimately resulted in imposition of penalty vide order dated 31-10-1994 (Annexure A-8). The petitioner fited detailed appeal assailing the order of disciplinary authority on several grounds. In his appeal, he had highlighted that serious iltegality and irregularity was committed by the respondents. The petitioner was not given proper opportunity of hearing and there was serious violation of principles of natural justice. However, the appeal filed by the petitioner was dismissed vide order dated 27-03-1995 (Annexure A-13). (3) Learned counsel for the petitioner assailed the entire enquiry and the order of imposition of penalty passed by the disciplinary authority as well as the order passed by the appellate authority by arguing that there has been serious violation of principles of natural justice. It has been submitted that the petitioner was not supplied the documents which were necessary for his defence though several applications were submitted. It has also been urged that while conducting enquiry, proper opportunity of hearing was not afforded to the petitioner. The entire enquiry was held on the back of the petitioner in ex parte manner and the petitioner had no opportunity to cross-examine the prosecution witnesses. Further, the petitioner was also not afforded opportunity of hearing during examination of defence witnesses. In the departmental enquiry, the charges were proved against the petitioner on the basis of evidence which was ^^^^ <.^) collected behind the back of the petitioner. Learned counsel further argued that even though, earlier a decision was taken to impose minor penalty, without giving any show cause notice and opportunity of hearing to the petitioner, the earlier decision was modified and major penalty was imposed. Learned counsel further contended that the petitioner had submitted a detailed appeal highlighting several illegality and irregularity in the departmental enquiry which seriously prejudiced the case of the petitioner resulting in violation of principles of natural justice. The appellate authority though obliged under the law to consider the appeal on the grounds raised therein and decide the same by due application of mind, acted mechanically and dismissed the appeal without consideration, without application of mind whatsoever which is clearly reflected from the order passed in appeal. (4) Referring to the return, learned State counsel argued that charge sheet was issued on 14-03-1990 (Annexure A-1) by which two charges were leveled against the petitioner and he had submitted his reply. Thereafter, Enquiry Officer was appointed by the Collector, Surguja on 06-09-1990. The petitioner was given ample opportunity to inspect the records which were asked for by him. The petitioner however did not avail the said opportunity and the Collector had to appoint the Enquiry Officer. The petitioner was in the knowledge of notice (Annexure R-2). The petitioner was given full opportunity in the departmental enquiry but the petitioner himself did not appear before the Enquiry Officer, therefore, enquiry was proceeded ex parte against him. After recording evidence, enquiry report was prepared in which the charges leveled against the petitioner, were found proved. Though, a note was put up before the Collector, the same was not approved. The Collector also enquired whether the Collector or the Commissioner is the competent authority to issue show cause notice. Thereafter, a show cause notice was issued by the Commissioner uyL-ss&'aSS:-^ -^^.. /^ ^ ^. y- 'A^"' by registered post to Lakhanpur as well as to Shankargarh address vide Annexure R-4, R-5 & R-6. The petitioner submitted reply by stating that the enquiry conducted against him was not as per rules vide letter dated 07-07- 1994 (Annexure R-7). The petitioner was thus given full opportunity of hearing andthere is no violation of principles of natural justice. There is ample evidence on record to sustain finding of guilt against the petitioner and as there was no merit in the appeal, the same was also dismissed. (5) Upon perusal of the order passed by the appellate authority on 27-03- 1995 (Annexure A-13), it is found that the only consideration made by the appellate authority is as below:- "STN^I Rfci.4i4d spft^r fc]-cii^q\ii-d 'yiRv) ^t ^TKft 11" (6) In the case of Soniram Dhruv Versus State of Madhya Pradesh and others, (W.P.(S.)No.1367 of 2005) this Court vide order dated 05-02-2010, dealing with the identical situation where totally non-speaking order was passed bythe appellate authority, held:- 11. It is well settled that the Appellate 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 of an appeal are as under:- 27. Consideration ofAppeal:- "(1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether 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 10 or enhancing any ^-;"'. ^^./ 6. v.V..^9 penalty imposed under the said rule, the appellate authority shall consider:- (a) whether the procedure laid down in these rules has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of India or in the failure ofjustice; (b) whether the findings of the disciplinary authority are warranted by the evidence on the records; and (c) whether the penalty or enhanced 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." 12. Appellate Authority is therefore obliged under the law to exercise its statutory power of appeal in accordance 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 consider 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 orin the failure of justice; whether findings of the disciplinary authority are warranted by the evidence on record and whether the penalty imposed 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 of the case. The scheme of Rule 27 therefore clearly implies that the Appellate Authority has to pass ^ speaking order indicating that points raised by the petitioner has been considered. In case the objection of the petitioner is not acceptable he has to give the reasons for not accepting the same. It is thus the duty of Authority to apply its mind while deciding the appeal and he is obliged to give clear finding on the charges of the penalty. The powers of Authority being quasi-judicial in nature are required to be performed in all seriousness with a view to do justice with 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 the cases of Tara Chand Khatri Vs. Municipal Corporation of Delhi and others, 1977 (1) SCC 472; Divisional Forest Officer, Kothaaudem and others Vs. Madhusudhan Rao, 2008 (3) SCC 469, but if in the scheme of the statutory rules governing terms and conditions of service such a duty is cast on Appellate Authority to give reasons even in the caseof an order of affirmation, the Appellate Authority is obliged to give reasons by applying its mind while considering the appeal in the manner prescribed under the Rules. 14. In the case of Ram Chander Vs. Union of 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 similar to the rules applicable in the present case it was held as under:- "4. The duty to give reasons is an incident of the judicial process. So, in R.P. Bhatt v. Union of India (1986 (2)SCC 651), this Court, in somewhat similar circumstances, interpreting R.27(2) of the Central Civil Services (Classification, Control & Appeal) Rules, 1965 which provision is in pari materia with R.22(2) of the Railway Servants (Discipline & Appeal) Rules, 1968, obsen/ed : "Itis clearupon theterms of R.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 of the provisions of the Constitution of India or in the 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 remit back the case to the authority which imposed the same. It was held that the word 'consider' in Rule.27 (2) of the Rules implied 'due application of mind'. The Court emphasized that the Appellate Authority discharging quasi- judicial functions in accordance with natural justice must give reasons for its decisions. There was in that case, as here, no indication in the impugned order that the 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 crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. In the present case, the impugned order of the Railway Board is 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 sen/ice imposed on you is merited. (2) The Railway Board have therefore rejected the appeal preferred by you." 5. To say the least, this is just a mechanical reproduction of the phraseology of P.22[2) of the Railway Servants Rules without any attempt on the part of the 4C 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 removal from semce is a matter of grave concern to a civil servant who after such a long period of sen/ice, may not deserve such a harsh punishment. There being non-compliance with the requirements of R.22(2) of the Railway Servants Rules, the impugned order passed by the Railway Board is liable to be set aside." In the same judgment, the Supreme Court, pointing out distinction based on scheme of statutory rules relating to consideration 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 passing such order, relying on the test 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 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 & 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. 15. Even in a case where there is no duty caste on Appellate Authority to give reasons in case of order of affirmation, Supreme Court held in the case of Divisional Forest Officer. Kothaaudem 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 tower forum." 16. Recently in the case of Chairman, Disciplinarv Authoritv. Rani Lakshmi Bai Kshetriva Gramin Bank Vs. Jaadish Sharan Varshnev and others. 2009 (4) SCC 240. Supreme Court has held as under: "5. In our opinion, an order of affirmation need not contain as elaborate reasons as an order of reversal, but fK % ^; s^~ 1;^1 '^. S^| ^' 10 < /^ \ \w 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 an application of 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 contain some reasons, at least in brief, so that one can know whether the appellate authority has applied its mind while affirming 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 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 any reasons, it does not show any application ofmind. 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 of India 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 minimizes the chances of arbitrariness. Hence, it is an essential requirement of the rule of law that some reasons, at least in brief, must be disclosed in a judicial or quasi-judicial order, even if it is an order of affirmation. 11 w 9. No doubt, in S.N.Mukherjee's case (supra), it has 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 in the order under challenge." The above observation, in our opinion, really means that the 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 AIR para 15)) has also to be understood as explained by us above." (7) If the order passed by the Appellate Authority is scrutinized by applying aforesaid principle of law laid down keeping in view statutory requirement as to the manner of consideration of an appeal, it leads to inevitable conclusion that the order passed by the Appellate Authority does not contain any reason whatsoever and is a mechanical affirmation without considering the appeal according to the statutory service rules much less application of mind to the specific grounds raised by the petitioner in his appeal. Therefore, the order passed by the Appellate Authority is clearly unsustainable in law and liable to be set aside. (8) In view of the above finding, 1 do not propose to go into other aspects of the matter relating to validity of the order of punishment recorded by the 'iii'Sw-'-** ;^ ^^^^£» /^ 11 l^i fc^^ ^^^^ l? Disciplinary Authority on the ground raised by the petitioner in the petition as argued by learned counsel forthe petitioner. (9) Relying upon the order of Supreme Court in the case of Chairman, Disciplinary Authority, Rani Lakshmi Bai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney (supra) this petition is partly allowed and the impugned order dated 27-03-1995 (Annexure A-13) passed by the appellate authority is hereby set aside. The matter is remanded to the Appellate Authority to decide the appeal filed by the petitioner afresh in accordance with law. Taking into consideration the fact that the order of punishment was imposed way back in the year 1994, the appellate authority shall make all endeavour to decide the appeal as expeditiously as possible not later than 4 months from the date of receipt of copy of this order. No order as to costs. Sd/- Manindra Mohan Shrivastava Judge Tumane