"Ul.. ll. V- IN TB MMBIY& ERAIffiSH AtBlINISa'R&TIVB TRIBHNiU., BEHeH ASC BACTtM.. ^ ^^ f^] iStfV&Si6^ ©.A.M@. ytsss ^ Raglaveaara Marskale, S/a.Sbri Muaa.lran Mar'slcele, Ageds aboat 4©years . ©eeupakiensSute-Regis'ti-ar , Tetastl- Bilaspur BISTT. BI1ASEBR (It.?.) APEbieAST V/S. 1. The. Sovt.afi Maflbya-PFadesh •thF»iagb;;::flis;Seeiretary,' ' • Yana.'.jy:4.fc: 'Kar' •v.t&tiag, y • ^': aawlralaya,-: Bi©EA£. a.S-tTSe^aInspeisteF ·<3eiaer.al of-:Re§isfcr^fei®n R^poaaEiaTS !&';Su]peFl.Bte€leat oS Stangs , :,®®v?t;<«>;£"'H.jp. .! ' • • • , - n Bttawan, gis. Vi^ban Sabha Bfaawan, BS®E>,^£,(M.P.) . .. . - APPbIGATiaN UNli^R S.SSTI8H 19 0E'iTEBi AaHIMISTRATIWE TRIB®fiM..'SIAeT'lS8S.: * ^ B 1.. SaFtieulars-ai the-;appl.Leant ': As.s<tatea'lnfc:Ke~,: oause' tifele,. ' . 2. gaEtlcul.aB's ef ttie —^o— ..:a: •«>. APPLICANT HIGH COURT OF CHHATTISGARH : BILASPUR WRIT PETITION (S) N0.2838/2005 Raghvendra Marskole Versus RESPONDENTS The Govt. of Madhya Pradesh and another Single Bench: Hon'ble Shri Manindra Mohan Shrivastava. J, Present: - Shri A. S. Rajput, counsel for the petitioner. Shri Chandresh Shrivastava, Panel Lawyer for the State/respondents. ^.__ ORAL ORDER (Passed on 26th April, 2010) Bythis petition, the petitioner has challenged the order dated 19-12-1997 (Annexure A-10) passed by the disciplinary authority in a departmental enquiry against the petitioner on certaih charges of misconduct as also theorder dated 28-10-1998 (Annexure A-13) passed by the appellate authority. (2) The petitioner while working as Sub Registrar in District Mandsour was proceeded againstin a departmental enquiry under Rule 14of the M.P./G.G. Civil Services (Classification, Control & Appeal) Rule?, 1966, (For short "the Rules of 1966") instituted by issuance of charge sheet on 13-06-1994 (Annexure A-1). The Enquiry Officer thereafter conducted departmental enquiry against the petitioner andsubmitted enquiry report on 19-12-1997(Annexure A- 10) whereby respondent No.2-lnspector General of Registration & Superintendentof Stamps, imposed penalty of stoppage of three increments with cumulative effect. Aggrieved by the said order of penalty, the petitiorier preferred a departmental appeal under Rule 23 of the Rules of 1966 dated 02-02-1998 (Annexure A-11). The said appealwas also dismissed vide order ^•^aE^ Ka. e^r \ \s dated 28-10-1998 (AnnexureA-13). Being aggrieved bythe said order, the petitioner filed the instant petitioh. (3) Learned counsel for the petitioner assailed the order of imposition of penalty passed by the disciplinary authority on 19-12-1997 as well as the order passed by the appellate authority on 28-10-1998 by arguing that the petitioner has never committed any misconduct in discharge of his duties. Learned counsel for the petitioner submits that the findings recorded by the Enquiry Officer are baseless and presumptive. No evidence have been produced in the ^epartmental enquiryto substantiate the charges levelled against the petitioner. Only a single prosecution witness, District Registrar, Mandsour was examined, who simply deposed that the petitioner has disobeyed the guidelines issued by the Collector, Mandsour. Learned counsel for the petitioner submits that aggrieved bythe impugned orderof penalty, the petitionersubmitted an appeal raising several grounds assailing the legality and validity of the order passed by the disciplinary authority on 19-12-1997. Referring to the memo of appeal placed on record as Annexure A-11, it js next urged that substantial grounds were raised in appeal. It is also argued that theappellate authority was obliged under the law to consider the appeal and decide the same by a speaking order by recording reasons which has not been done. A perusal of the order passed in appeal would show that no cohsideration has taken place and without recording any reason whatsoever in a mechanical manner, the appeal has been dismissed. (4) On the other hand, learned State counsel supported the order passed by the disciplinary/appellate authority by submitting that after submission of enquiry report, the respondent No.2 issued a show cause notice to the petitioner, as per statutory rules. Learned State counsel further submits that the '^ ^te, I. •^-.'^ '•• .& ...;i;' ^f it;!:i1 ! .';• '• 'ii^ <; l"tif ^ petitioner has committed misconduct and not performed his duties as per rules and regulations, consequently, the petitioner had to face departmental enquiry as per rules. Learned State counsel further submits that there is no procedural irregularity or illegality nor violation of principle of natural justice and the petitioner was given due and proper opportunity of hearing and the enquiry was held in accordance with law. There is ample evidence on record to sustain finding of guilt against the petitioner. The disciplinary authority after giving opportunity of hearing to the petitioner to show cause against the proposed penalty, imposed penalty which cannot be said to be illegal. Further, the penalty ^mposed, looking to the misconduct, cannot be said to be excessive or disproportionate. Appeal filed by the petitioner was considered by the appellate authority and the same has been rightly dismissed as there was no merit in the appeal. (5) Upon perusal of the order passed by the appellate authority on 28-10- 1998 (Annexure A-13), it is found that the only consideration made by the appellate authority is as below:- 3TCT: HTt?r STRH^T q? HTCT SiPPTCT ? 'gqqi^ ^ ^H ?R§ff^, 'SIRTST 3iP'r?Rgf ^ q^tem 4 q? qrer TraT t f^; <ft ^';>t<blc) ^ ^ 'Ept^ d®T3pft5T STRfffe'T TlSIT WTST •y'lcll^ 4 y't^d •^ f^ 'T^ t, Rt'Hci? 3DEIR TK ?T? 11HT ^T ^ 1^; '^ 3riS|'<lRd 5TTR?T '^ Pl'i'i-d SISIcTT cpTT q^ ?ftnT 11 SRT: W?T 5IRT'T ST?T, eft +l<i't4>l(yl ^ sfr? ^ c;<M|c|ufl ^PT 17uft?T'T ^PT ij^T W ^^ ?TRFT ?pT W\W 'gTf^ qgrIT^ c^ c^q qft *C;|T|\;"| q?t ^ft 4 T[H^7 ^I^ ETRT W^ff SPftcT SfRITt^T q5t 3RF?T q57, Tgrpi^tei^ TN^ grcr inf^cT sn^r RT1 19.12.97 Ri'Hcft gTCT 3 tcR^ TWft CTmcT •^ •Tt^ •srpT wiEft ^iifei srfSRttiRr ?i?t irf t, ^l' 'qsnqn ^37 ^1^ 11 (6) \n the case oi Soniram Dhruv Versus State of Madhya Pradesh and others, (W.P.(S.)No.1367of 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:- ^:jlL?5^^A^S; (^ 11. It is well settled thatthe Appellate Authority while considering the appeal acts in quasi-judicial capacity. Relevant provision contained in C.G. Civil Services (Classification, Control & Appeal) Rules, 1966 forconsideration ofariappeal are as under:- 27. Consideration ofAppeal:- "(1) In the case of an appeal against an order of suspension, the appellate authorityshall consider whether in thelight 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 pehalties specified in rule 10 or enhancing any penalty imposed under the said rule, the appellate authority shall consider- (a) whether the procedure laid down ih these rules has beencpmplied 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; atid (c) whether the penalty or^nhanced 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 of the 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 samein the mannerprescribed in Rule 27 (2) ofthe 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 or in 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 arid 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 withsuch direction as deem fit in the circumstances of the case. The scheme of Rule 27 therefore cleariy implies that the Appellate Authority has to pass speaking order indicating that points raised by the petitioner has been considered. In case theobjection ofthe 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 obligedto give.clearfindingon the charges ofthe penalty. The powers ofAuthority 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 reasonswhile agreeing with and confirming order passed by the DisciplinaryAuthority, as held in the casesof Tara Chand Khatri Vs. Municipal CorDoration of Delhi and others, 1977 (DSCC472: 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 case of 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 :^*^ss ^. I ^'•' -^' fes' ^ 353^ ^ f\^ Servants (Discipline and Appeal) Rules, 1968, which is quite similarto the rules applicable in the present caseitwas 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, observed: "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 failureof justice ;(2) whether the findings of the disciplinary authority are warranted by the evidenee 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 theword '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 asto whether the findings of the disciplinary authority were warranted by the evidence on record. In the pre.sent case, the impugned order ofthe Railway Board is in these terms : "(1)1n terms of Rule 22(2) of the Railways Servants (Discipline SAppeal) Rules, 1968, the Railway * Board have carefully consideredyour 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) bythe evidence on record, theflndings ofthe disciplinary authority are warranted ; and (b) the penaltyofremoval 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 of the phraseology of R.22(2) ofthe Railway Servants Rules without any 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 theextreme penaltyof removal from service for a single lapse in aspan of 24yearsof service. Dismissal or removal from service is a matter of grave concern to a civil servant who after such a long 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 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 &Ors..[1977]2S.C.R.198 this Court observed that there was a vital difference between an order of reversal by the appellate authority and an ,;iiii&;l,., y^, ^ 1 ,s 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 onthetest laid down by Subba Rao, J. inMadhya 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 inthe 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 threeaspects stated therein. Similar arethe requirementsunderR. 27(2) ofthe 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 thematters indicated therein. The word 'consider'has different shades of meaning and must in R.22(2), in the context inwhich it appears, mean an objective consideration by the Railway Board after due application of mind which jmplies 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 feupra). "20. It is no doubt also true that an appellate or revisional authority isnot required to give detailed reasons for ^y'5^. ^ agreeing and confirming an order passed by the lower forum but, in our view, in the interestsof 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 affirmingthe views ofthe lower forum." 16. Recently in the case of Chairman, Disciplinarv Authoritv, Rani Lakshmi Bai Kshetriya GraminBank Vs. Jagdish 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 orderof 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 ease (supra) has itself stated that the appellate order should disclose application of mind. Whether there was an appiication 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 orderof the disciplinary authority. 6. The viewwe are taking wasalso taken by this Court in Divisional Forest OfReer 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), ete. 7. In the present case, since the appellate authority's 10 ^,^^^^: '^^•' '""••- •^'•s^''1'' ^ orderdoes not contain any reasons, 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 of India reported in (1990) 4 SCC 594 :1990 SC (Cri.)669, is that peopte musthave 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. 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 elabprate 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 anorder 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 thesame reason, the decision of this Court in State of Madras vs. Srinivasan, AIR 1966SC 1827 (vide AIR para 15))has also to be understood as explained by us above." 11 ^ (7) If the order passed by the Appellate Authority is scrutinized by applying aforesaid principle oflawlaid down keeping in view statutory requirement as to the manner of consideration of an appeal, itleads 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 thestatutory 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 affirming the order passed in appeal is clearly unsustainable in law and liable to be set aside. (8) In view ofthe 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 Disciplinary Authority on the ground raised by the petitioner in the petition as argued by learned counsel for the petitioner. (9) Following the orderof Supreme Court in the case of Chairman, Disciplinary Authority,Rani LakshmiBai Kshetriya Gramin Bank Vs. Jagdish Sharan Varshney (supra) this petition is partly allowed and fhe impugned order dated 28-10-1998 (Annexure A-13) is herebyset 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 fhat the order of punishment was imposed way back on 19-12-1997, it is further directed that the appeal shall be decided by the Authority asexpeditiously as possible not later than 4 months from the date of receipt of copy of this order. No order asto costs. [ Sd/- Manindra Mohan Shrivastava Judge ^ Tumane