HON’BLE SHRI G.S.SINGHVI, THE CHIEF JUSTICE AND HON’BLE SHRI JUSTICE C.V.NAGARJUNA REDDY WRIT PETITION No.8510 OF 2007 Between: Shri K.Natarajan . . .Petitioner AND The Station Commander, Air Force Station, Begumpet, Hyderabad and others . . .Respondents :: ORDER :: Counsel for the petitioner : Shri Ch.Ravinder Counsel for respondents : Shri A.Rajashekar Reddy, Assistant Solicitor General 25th April, 2007 Per G.S.Singhvi, CJ This petition is directed against order dated 10-10-2006 vide which the Central Administrative Tribunal, Hyderabad Bench (for short, ‘the Tribunal’) dismissed O.A.No.1186 of 2003 filed by the petitioner for quashing the penalty of reduction of pay imposed on him by the disciplinary authority. The petitioner was appointed as Group-D Watchman in the year 1972 at Air Force Station, Begumpet. In 1999, a departmental enquiry was instituted against him on the following charges: ARTICLE I Shri K. Natarajan perpetually evading the move on T/D to Adilabad Air Field for performance of his trade duties. He willfully defied the lawful authority since -1 May, 99 in gross contravention of Rule 3 (1)(ii) and (iii) of Central Civil Services (Conduct) Rules, 1964. ARTICLE II Shri K. Natarajan has absented himself without leave from 27 Aug, 99 and continues to remain absent till date in contravention of Rule 3 (1)(ii) of Central Civil Services (Conduct) Rules, 1964. ARTICLE III Shri K. Natarajan is in habit of committed acts of grave misconduct unbecoming of a Government Servant wherein he levelled baseless, unsubstantiated and unsupported allegations against Sqn. Ldr. Vinod Malik, the then Chief Administrative Officer, AF Stn. Begumpet and, Senior Personnel Staff Officer, HQ TC, IAF, Bangalore in gross contravention of Rule 3 (1)(iii) of Central Civil Services (Conduct) Rules, 1964. ARTICLE IV Shri K. Natarajan is a habitual offender wherein he has incurred eight penalties on account of various misconducts committed by him since the year 1991 amounting to unbecoming of a Government Servant in contravention of Rule 3 (1)(iii) of Central Civil Services (Conduct) Rules, 1964. The statement of imputation of misconduct/misbehaviour served on the petitioner also read as under: ARTICLE I That the said Shri K. Natarajan was detailed to proceed on temporary duty to Adilabad airfield for performing the duties of his trade wef 01 May, 99, which he is perpetually evading till date vide BEG/2503/1/P4 dated 22 Jun 99, BEG/2739/2/PC dated 29 Jun 99, BEG/2739/2/PC dated 06 Jul 99, BEG/2506/1/1/P4 dated 07 Jul 99, BEG/2739/2/PC dated 08 Jul 99, BEG/C 1903/17/Org dated 28 Jul 99, BEG/2503/1/1/P4 dated 26 Aug 99, BEG 2756/579/PC dated 30 Aug 99, BEG/2756/579/PC dated 01 Sep 99, BEG/C 2503/1/1/P4 dated 02 Sep 99, BEG/2756/579/PC dated 08 Sep 99 and BEG 2756/579/PC dated 04 Oct 99. In spite of ibid numerous correspondence on subject the said Shri K. Natarajan has not proceeded on T/D to Adilabad Air Field till date. He has neither reported to Station Security Officer for Duty nor has submitted any leave application for regularisation of prolonged unauthorised absence. ARTICLE II The said Shri K. Natarajan is absent without leave since 27 Aug 99. He has neither reported to Station Security Section for duty nor has submitted leave application for his unauthorised absence since 27 Aug 99. ARTICLE III That the said Shri K. Natarajan in his written representation dated 08 Nov 99, addressed to the Commanding Officer, Air Force Station, Begumpet with copies to SOA, HQ TC, IAF, AOP, Air HQ (VB), Dir of Air Intelligence, Air HQ (VB), Secretary, Ministry of Defence, Government of India, New Delhi and another three addresses levelled baseless, unsubstantiated and unsupported allegations that Sqn Ldr V. Malik has formed a gang of anti-social elements without naming or supplying the names of the members of such gang. In his same representation, Shri K. Natarajan goes on to state that “I doubt that the SPSO is very much behind this plot.” That the said Shri K. Natarajan is in habit of employing an intemperate and insubordinate language against his superiors is evident from the judgment in OA No.1449/98 which he filed against higher Government functionaries like Secretary to the Government, Ministry of Defence, AOC-in-C, HQ TC IAF, Gp. Capt G. Chaturvedi and Sqn Ldr KA Kiran and two SNCOs. To quote from the judgment in OA No. 1449/98 “…… the OA is replete with sweeping allegations against an array of his superiors, vague generalizations, unsubstantiated accusations and unsupported charges against all the respondents on some real or fanciful ground. None of these establish nothing against anyone though they do reveal that the Applicant is apt to be insubordinate and defiant of all authority and discipline --- features of a person’s conduct which militate against good order in a highly- disciplined organization like the Air Force. From the OA and its accompaniments, it is evident too that the Applicant is in the habit of employing an intemperate language in his appeals and representations to his superiors.” The petitioner denied the charges and prayed that he may be given opportunity to disprove the same. He also requested that the inquiry may be got conducted by a civilian officer. His last mentioned request was turned down by the disciplinary authority. The officer, who was entrusted inquiry, submitted report with the finding that the charges levelled against the delinquent i.e. the petitioner have been proved. The disciplinary authority accepted the report of inquiry and supplied a copy thereof to the petitioner so as to enable him to submit representation against the findings recorded by the enquiry officer. The latter submitted representation dated 16-5-2002. He not only questioned the procedure adopted by the enquiry officer, but also challenged the findings recorded by him. After considering the same, the disciplinary authority passed order dated 6-6-2002 whereby penalty of reduction of pay from Rs.3345/- to Rs.2610/- in the time- scale of Rs.2610 – Rs.3540 was imposed on the petitioner for a period of 5 years with a stipulation that he will not earn increment during that period and the penalty will have the effect of postponing his future increments. The appeal preferred by the petitioner against the order of punishment was dismissed by the Appellate Authority vide its order dated 20-12-2002, the relevant portions of which are extracted below: “3. AND WHEREAS, comments of the Stn. Cdr, AF Stn, Begumpet, were sought on the said appeal. The original records in the case were called for from AF Stn, Begumpet and examined. Each issue raised by Shri K. Natarajan in his abovesaid appeal has been carefully considered and examined. From an examination of the issues raised in the appeal vis-à-vis the inquiry proceedings and the facts on records in the case, I arrive at the following conclusions on the various issues contained in the appeal: (a) Punishment order is Not a Speaking Order: The records have been examined and it is revealed therefrom that the disciplinary authority had deliberated in detail the representation dated 16 May 2002 submitted by Shri K. Natarajan. Each point raised by Shri K. Natarajan in his said representation is found to have been analysed and considered by the disciplinary authority judiciously before arriving at a decision as regards the penalty imposed on him. It is also seen that the Disciplinary authority had concurred with the findings of the inquiry officer. It is also on record that before deciding the penalty, a personal hearing to Shri K. Natrajan was given by the disciplinary authority. The order of the Disciplinary authority communicating the punishment also states that the Disciplinary authority had considered the said representation of Shri K. Natrajan and found that contentions contained therein were not tenable. In these circumstances, I consider that the Disciplinary authority had applied its mind to all the contentions raised in the above said representation of Shri K. Natrajan before imposing the penalty on him and the punishment order contains an annotation to that effect. (b). The Inquiry Officers were biased From the appeal memo, the grounds on which Shri K. Natrajan deemed the inquiry officers to be biased, are not apparent. However, from the records, it appears that Shri K. Natrajan had submitted a representation to the Stn. Cdr, AF Stn, Begumpet on 31 JaN 2000, wherein he had alleged bias against the then inquiry officer, Sqn. Ldr. KRRK Raja (Exh. ‘B’ in the inquiry proceedings). The then SOA, HQ TC, IAF, being the appellate authority, had considered his said representation and after examining the same vis-à-vis the reply of the Stn. Cdr thereupon, had arrived at a conclusion that the allegations of ‘Bias’ leveled by shri K. Natrajan against the said inquiry officer were baseless and unsubstantiated and, therefore, Sqn Ldr KRRK Raja was allowed to continue as the inquiry officer. The said order of the appellate authority in this regard was communicated to Shri K. Natrajan (EXH ‘C’ in the inquiry proceedings). Thereafter, the inquiry had resumed, but, in the meantime, Sqn Ldr KRRK Raja was posted out to 505 SU, AF, wef 21 Jun 2001, therefore, Sqn Ldr Ravi Sharma was appointed the new inquiry officer by the disciplinary authority. On 13 Feb 02, Shri K. Natrajan submitted another petition to the Disciplinary authority leveling allegation of ‘Bias’ against Sqn Ldr Ravi Sharma (EXH ‘CU’). The Stn Cdr, AF Stn, Begumpet, had considered the said representation and rejected all the allegations being devoid of any substance and Shri Natrajan was informed accordingly (EXH ‘CV’. The said action of the disciplinary authority was proper. I have examined the inquiry proceedings and find that the inquiry officers had conducted the inquiry as per Rules and none of their actions reflect any kind of ‘Bias’ against Shri K. Natrajan. Therefore, I find no substance in this contention. (c) Presenting Officers were changed without justified reasons Shri B Balram, UDC, was initially appointed as the Presenting officer and later replaced by Shri M. Divakar Rao on 23 Nov 01 as Shri Balram was unavoidably absent. The said change was effected through an appropriate order to the inquiry officer under intimation to Shri K. Natrajan. On 11 Dec 01, Shri Radhakrishnan was appointed as the new Presenting officer by the Disciplinary authority. Such a change in the Presenting officers due to service exigencies is permissible. Shri K. Natrajan has not shown either during the inquiry or in the appeal as to how the change in the Presenting officer caused any prejudice to him during the inquiry. The contention of the appellant that the next Presenting officer was not eligible to act as the Presenting Officer because of his presence while examining PW-3, is vague as it does not indicate which Presenting officer was present during the examination of PW-3. Moreover, Daily order sheets of the relevant days do not reflect any objection by Shri K. Natrajan or the Defence Assistant as to the appointment of the new Presenting officer(s). It is, therefore, obvious that change in the Presenting officers did not cause any prejudice to Shri K. Natrajan. (d) Inquiry not held as per Rule 14 of the CCS (CCA) Rules Shri K. Natrajan has submitted in the appeal that during the inquiry, Rules were violated at every stage and the inquiry was not conducted as per Rule 14 of the CCS (CCA) Rules, 1965. In this regard, he mainly brought out the following: (i) He was asked to give a detailed statement on the very first day of his appearance before the inquiry officer; (ii) He was not provided an opportunity to summon additional documents and witnesses; (iii) He was not given an opportunity to submit his defence statement or to appear as his own witness; and (iv) He was not generally questioned by the inquiry officer which is mandatory. (e) Per contra, an examination of the inquiry proceedings reveals that the inquiry was conducted as per the Rules and Shri K. Natrajan was provided with much more latitude in carrying out his defence than prescribed under the Rules. Though he was asked by the inquiry officer at the commencement of the inquiry proceedings if he wanted to make a statement, but he did not make any statement and nor did the inquiry officer insisted to have such a statement. No prejudice, whatsoever, has been caused to Shri Natrajan on this account. Regarding the contention that Shri K Natrajan was not provided opportunity to summon witnesses and documents, the inquiry proceedings reveal that on 29 Jan 2000, he had submitted a request to the inquiry officer (EXH ‘N’ in the inquiry proceedings) for handing over of four documents to him for the purpose of preparing his defence. Thereupon, Shri K. Natrajan was advised that only the Xerox copies of the said documents relevant to the inquiry will be provided. Thereafter, there is no representation on record to show that the abovesaid or any other document was not made available to him during the inquiry. Even in his written brief (closing address) Shri Natrajan did not raise any plea that the documents necessary for his defence were not provided. As regards the summoning of witnesses, it is revealed from the inquiry proceedings that on 19 Novem and 03 Dec 01, Shri K. Natrajan had made a request to the inquiry officer for summoning of some witnesses as state witnesses (EXH ‘AY’ & ‘BG’). The said request was disposed of by the inquiry officer on 12 Dec 01 (EXH ‘BR’) by informing him that he cannot insist upon the summoning of state witnesses as it is the prerogative of the Presenting officer to call or not to call any person as a state witness. However, Shri K Natrajan was also informed by the inquiry officer that he was free to call any person as a defence witness and any such request would be considered favourably. Thereafter, the Defence Assistant, through his representation dated 14 Dec 01 (EXH ‘BU’) requested the inquiry officer to permit him to be a defence witness. In the said representation, he also stated that other than himself, he did not wish to produce anybody else as a defence witness. Thereafter, nowhere in the inquiry proceedings, a request is seen for the examination of any other defence witness. In his written brief also, Shri K Natrajan did not state about the non-acceptance of the request for examination of any defence witness. It is obvious that this ground of appeal is also contrary to the material on record in the inquiry proceedings. Regarding the contention stated at Para 3 (d)(iii) ibid, it is found that Shri K Natrajan appeared as a witness and also made a statement during the inquiry proceedings and, therefore, his said contention is also not substantiated by the facts on record. (f) As regards the contention that Shri K. Natrajan was not generally questioned by the inquiry officer after the close of the defence case, which is mandatory, Rule 14 (18) of the CCS (CCA) Rules says, ‘the inquiring authority may, after the Government servant closes his case, and shall, if the Government servant has not examined himself, generally question him on the circumstances appearing against him in the evidence for the purpose of enabling the Government servant to explain any circumstances appearing against him”. The inquiry proceedings reveal that Shri K Natrajan was examined as a witness before the inquiry officer. Therefore, the inquiry officer was not under a bounden duty to question him. The action of the inquiry officer was proper and cannot be faulted. (g) Sufficient evidence not on record to prove the Articles of charge At para 4 of his appeal, Shri K Natrajan has stated that even on merit, there was no case against him justifying the award of punishment. He has stated that he was never relieved by his officer- in-charge, therefore, he could not go on temporary duty to Adilabad. On the contrary, the material on record in the inquiry proceedings indicates that on six different occasions, Shri K Natrajan had received clear instructions from his superiors to proceed on temporary duty to Adilabad, however, he chose not to so proceed. As regards the second articles of charge, Shri K Natrajan has stated that he had submitted medical certificates for a portion of the period of absence alleged and for the remainder of the period, he had reported regularly for duty although he was not allowed to perform his duty. The evidence on record in the inquiry proceedings reveals that from 27 Aug 99 onwards, Shri K Natrajan remained absent from duty till commencement of the inquiry on 24 Jan 2000 and even thereafter. Therefore, this contention is also not tenable. Regarding the third article of charge, Shri K Natrajan has stated that he had brought out the irregularities rampant in the administration not as a watchman, but as General Secretary of the union. His said conduct, therefore, could not have been made the subject matter of an article of charge. The said contention cannot be accepted because the fact of being an office-bearer of an employees’ union does not give a licence to write or report false and unsubstantiated allegations against superior officers. As regards the fourth article of charge, Shri K Natrajan has stated that his past misconduct could not have been called in question in the form of an article of charge. This contention is also not tenable, because if the previous bad record, punishment etc. is proposed to be taken into account in determining the question of penalty to be imposed, it should be made a specific charge in the charge-sheet itself. Therefore, the disciplinary authority was perfectly justified in framing a separate article of charge specifying all the past penalties imposed upon Shri K Natrajan. 4. AND WHEREAS, after giving careful consideration to various points and issues raised in the appeal and after examining the inquiry proceedings and original records in the case, I arrive at a conclusion that there is no substance in any of the grounds advanced by Shri K Natrajan in his appeal dated 17Aug 02. I am also satisfied that the procedure laid down in the CCS (CCA) Rules, 1965, was duly complied with during the inquiry and findings of the inquiry officer were based upon the evidence on the record. I also consider that the penalty imposed on Shri K Natrajan by the Disciplinary authority is adequate.” The petitioner challenged the orders passed by the disciplinary and appellate authorities by filing an application under Section 19 of the Administrative Tribunals Act, 1985 (for short, ‘the Act’). He pleaded that the previous punishments could not have been made subject matter of departmental enquiry; that the enquiry was vitiated due to procedural irregularities; that one of the witnesses named in the list supplied along with the charge sheet was not examined and, on that account, he could not elicit truth and that the punishment imposed on him is disproportionate to the misconduct found proved. The Tribunal rejected all the grounds of challenge and dismissed the application. The Tribunal referred to the judgment of the Supreme Court in State of Mysore v. Manche Gowda[1] and held that the purpose of framing Article 4 of the memorandum of charges was to put the applicant (the petitioner herein) on guard about the consideration of his past adverse record and that this was in consonance with the law laid down by the Supreme Court. The Tribunal then noted that the appellate authority has assigned cogent reasons to nullify the order of punishment and held that there was no warrant for nullifying the order of punishment passed by the disciplinary authority only on the ground of lack of reasons. On the issue of non-examination of the witness named in the list supplied by the department, the Tribunal approved the view taken by the Appellate Authority that it was open to the delinquent i.e. the petitioner to summon the witness, who had not been examined by the department. The Tribunal also held that the punishment imposed on the petitioner was not disproportionate to the misconduct found proved. Shri Ch. Ravinder reiterated the grounds of challenge taken before the Tribunal and argued that the order of punishment is liable to be quashed because it is totally devoid of reasons. Learned counsel emphasized that the disciplinary authority was duty bound to record reasons and communicate the same to the petitioner so as to enable him to effectively avail the remedy of appeal and argued that failure of the disciplinary authority to comply with this rule is sufficient for invalidation of the order of punishment. He further argued that the defect with which the order of punishment was afflicted cannot be treated as cured merely because the appellate order contains reasons. In the end, he argued that the punishment imposed on the petitioner is wholly disproportionate to the misconduct found proved and, therefore, the Court may substitute the same with lesser penalty. In our opinion, there is no merit in either of the contentions. It is well known that the High Court’s power of judicial review of the disciplinary action against the delinquent employee is very limited. The High Court can interfere with the order of punishment if it is found to be vitiated due to violation of the statutory rules or regulations or the principles of natural justice and such violation is found to have prejudiced the cause of the delinquent. The High Court can also nullify the order of punishment if the finding of guilty recorded by the enquiring/ disciplinary authority is based on no evidence or is influenced by extraneous factors/considerations. The doctrine of proportionality and Wednesbury Rule can be invoked by the High Court if it is convinced that the punishment imposed by the employer is per se arbitrary/capricious or wholly disproportionate to the misconduct found proved. Of course, the last mentioned ground is not available in cases involving fraud, misrepresentation or misappropriation/embezzlement of public funds. The parameters for exercise of the High Court’s power to issue a writ of certiorari are also well defined. A writ, order or direction can be issued for correcting errors of jurisdiction committed by inferior courts or tribunals or quasi-judicial authorities. A writ can also be issued where in exercise of jurisdiction conferred on it, the Court or the Tribunal or quasi-judicial authority acts illegally or improperly, i.e., it decides a question without giving an opportunity of hearing to the party affected by the order or where the procedure adopted by it is opposed to the principles of natural justice. However, it must be remembered that the jurisdiction of the High Court to issue a writ of certiorari is supervisory in nature and not appellate one. This necessarily means that the finding of fact reached by the inferior Court, Tribunal, etc., as a result of the appreciation of evidence, cannot be reopened or questioned in writ proceedings except when the judgment, order or award suffers from an error of law apparent on the face of the record. An error of law is one which can be discovered on a bare reading of the judgment, order or award under challenge along with the documents which have been relied upon by the inferior Court, Tribunal or quasi-judicial authority. An error, the discovery of which is possible only after a detailed scrutiny of the evidence produced by the parties and lengthy debate at the bar cannot be regarded as an error of law for the purpose of a writ of certiorari. A finding of fact recorded by an inferior Court or Tribunal or quasi- judicial authority can be corrected only if it is shown that in recording the said finding, the Court etc., had erroneously admitted inadmissible evidence and the same has influenced the impugned finding. Similarly, a finding of fact based on no evidence would be regarded as error of law which can be corrected by issuing a writ of certiorari. However, sufficiency or adequacy of the evidence relied upon by the inferior Court or Tribunal or quasi-judicial authority cannot be gone into by the High Court while considering the prayer for issue of a writ of certiorari. Likewise, mere possibility of forming a different opinion on