S. P. Dhir v. Union of India

1. A perusal of the order sheets shows that notice in the present petition has not yet been issued, although counsel for the respondents have already entered appearance and even filed their written submissions. Notice. Counsel for respondent no.1 and 2 accepts notice.

2. With the consent of the counsel for the parties, the writ petition is taken up for final hearing and disposal.

3. The petitioner, a former Under Secretary, National Council for Educational Research & Training (for short "NCERT"), is aggrieved by the order of the Central Administrative Tribunal (CAT) dated 31.08.2010 in O.A. 961/2007. He approached the CAT, feeling aggrieved by the orders issued by the disciplinary authority and the appellate authority, 2015:DHC:7382-DB dismissing him from service on the ground of misappropriation of Council’s funds and submission of false accounts and forged vouchers pertaining to expenses incurred for organising Department of Education in Non-Formal and Alternative Schooling (for short “DENFAS”) Training Programme organised at Coimbatore. The Tribunal has dismissed the aforesaid O.A. and consequently the petitioner has filed the present writ petition to challenge the order passed by the Tribunal.

4. In order to adjudicate the present writ petition, it is necessary to give the factual background of the case. The petitioner, Shri S. P. Dhir, being Assistant Project Coordinator, was entrusted with the responsibilities of organising the DENFAS Training Programme. The petitioner was handed a sum of Rs. 1,58,290/- for disbursement of TA/DA and other claims to attendants/experts who participated in the Training Programme. He was assigned with the responsibilities to oversee and regulate the financial expenditure of the programme and to render true and proper accounts of expenditure incurred in conducting the training Programme. Also, one Sh. Gopi Ram (working as PA, NCERT) was assigned the job of the PA for the programme. Thereafter, on conclusion of programme, the petitioner deposited Rs. 60,000/- as balance amount of the programme by means of draft and for the remaining part of the expenditure the petitioner handed over the vouchers, account statement of expenditure to Sh. Gopi Ram. Later on, it was found that the accounts submitted by the petitioner and Sh. Gopi Ram, contained many false entries and forged vouchers showing payments which were never actually made. The petitioner submitted false vouchers for more than Rs. 28,000/- against statement of expenditure of Rs. 98,290/-.

5. Mr. Rajeev Sharma, learned counsel for the petitioner submitted that the order passed by the Central Administrative Tribunal is unjust, illegal, arbitrary and against the principles of natural justice. It is further submitted that the Tribunal has failed to appreciate that the inquiry proceedings and the consequent orders suffered gravely from the procedural and legal infirmities; in the light of the above submission the impugned order is bad in law.

6. Learned Counsel for the petitioner further submitted that removal of the petitioner from service is illegal and the order of removal is disproportionate to the gravity of charges proved against the petitioner, in any case, the present was a case of no evidence, and that it was merely a conjecture and surmise on the part of the authorities to conclude that it was a case of misappropriation.

7. Last of all, it was contended by the learned counsel for the petitioner that the petitioner was deprived of the opportunity of inspecting the original documents and the nomination of an officer to authenticate the alleged signature. The counsel further contended that the contentions of the petitioner was not fully dealt with in impugned order which could be summarised as under:

(i) Are the findings recorded in the departmental inquiry perverse?

(ii) Are they based on no evidence? (iii) Does the inquiry suffer from the infirmity of non-application of mind? (iv) Has the petitioner been prejudiced by some act or omission which caused the entire proceedings to be vitiated?

8. Mr. R. K. Singh, learned counsel for the respondent urged that no infirmity can be found with the initiation and conduct of departmental proceedings. The charges alleged against the petitioner were established on the face of the record and the inquiry proceedings were conducted in accordance with law and that there was no violation of the principles of natural justice. The counsel further submitted that no malafides or illegality in the proceeding could be found; the said findings of Enquiry officer are findings of fact and cannot be re-opened before this Court. In these circumstances, the learned Tribunal acted correctly in not interfering with the decision of the respondent in issuing the dismissal order.

9. We have heard learned counsel for the parties and considered their rival submissions. We have also carefully examined the impugned order passed by the Central Administrative Tribunal dated 31.08.2010. It is the case of the petitioner that the inquiry was jointly held against the petitioner and his Personal Assistant, Sh. Gopi Ram. The petitioner alleged that the findings of the disciplinary authority appears to be discriminatory as the co-delinquent Sh. Gopi Ram who had been simultaneously proceeded with the petitioner and was charged with identical allegations and misconduct, had been awarded the punishment of compulsory retirement. However, the petitioner was dismissed from services. The short point which comes up for consideration before this Court is as to whether the enquiry and the disciplinary proceedings have been conducted as per the prescribed procedure and whether the petitioner has been given adequate opportunity for his defence in the process. It would be useful to reproduce para 9 of the judgment of the Central Administrative Tribunal, which reads as under: “The inquiry has been conducted as per the prescribed procedure. The inquiry officer’s report does not suffer from any shortcomings in as much as the inquiry officer has considered and answered all the arguments raised by the applicant in his defence statement. The orders of the disciplinary and appellate authorities have also taken into account the pleas of the applicant. The argument that the codelinquent has only been awarded the punishment of compulsory retirement whereas the applicant has been dismissed, thereby discriminating against him has no force. As aptly noted by the appellate authority, the applicant had higher responsibility as compared to Gopi Ram by virtue of holding a higher post. The applicant has committed grave misconduct of misappropriation of the NCERT’s money and the punishment meted out to him is appropriate. In view of this, no interference is called for in the impugned orders. The O.A. is dismissed. No costs.”

10. We have also carefully considered the submissions made by learned counsel for the petitioner that the findings of the disciplinary authority are discriminatory as the co-delinquent, Sh.Gopi Nath, who was charged with identical allegations, has been awarded the punishment of compulsory retirement. We find no force in this submission of counsel for the petitioner for the reason that the Tribunal has extensively relied upon the report of the Enquiry Officer to compare the role played by the petitioner and the co-delinquent that was his Personal Assistant, Sh.Gopi Nath. In the order passed by the CAT, paragraphs of enquiry report have been quoted and in view thereof, we find no grounds to disagree with the view taken by the CAT.

11. In order to analyze the gravity of the submissions made on behalf of the petitioner, it is necessary to refer to the decisions of Hon'ble Supreme Court as below: i. The Hon'ble Supreme Court in Secretary to Government, Home Department and Ors. v. Srivaikundathan, 1998 (9) SCC 553, has observed that the quantum of punishment imposed is matter to be considered by the disciplinary authority and the scope of judicial review regarding reducing of quantum of punishment was held impermissible. ii. In Bank of India and Anr. v. Degala Suryanarayana, (1999) IILLJ 682 SC the Hon’ble Supreme Court held as under: “The Court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of malafides or perversity i.e. where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that finding. The Court cannot embark upon re-appreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained” iii. The Hon'ble Supreme Court in Regional Manager U.P. SRTC, Etawah and Ors. v. Hoti Lal and Anr. 2003 (3) SCC 605, has held that the scope of judicial review in respect of penalty/punishment is very limited and restricted and the Court must give reasons for holding the punishment to be not commensurate with the charges. iv. The Hon'ble Supreme Court in Damoh Panna Sagar Rural Regional Bank and Anr. v. Munna Lal Jain 2005 (10) SCC 84, has held that the Court's interference with the punishment is called for only when it is so disproportionate as to shock the judicial conscience. v. In V. Ramana v. A.P. SRTC and Ors. 2005 (7) SCC 338, the Hon'ble Supreme Court has held as under: “Case-law shows that the Court should not interfere with the administrator's decision unless it was illogical or suffered from procedural impropriety or was shocking to the conscience of the Court in the sense that it was in defiance of logic or moral standards. The Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision for that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision. (paragraph-11) To put it differently unless the punishment imposed by the disciplinary authority or the Appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further, to shorten litigation, it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the Disciplinary Authority or the Appellate Authority to reconsider the penalty imposed.(paragraph-12)” vi. In Government of A.P. and Ors. v. Mohd. Nasrullah Khan 2006 (2) SCC 373, the Hon'ble Supreme Court has observed that in exercise of powers of judicial review under Article 226 of the Constitution, the High Court cannot act as an Appellate Authority in respect of the findings of the disciplinary authority confirmed by the Appellate Authority. The relevant paragraph of Nasrullah Khan (supra) is reproduced as below: