SUPREME COURT OF INDIA
Mathura Prasad
Vs
Union of India and Others
Appeal (Civil) 4634 of 2006 (Arising Out of Slp) No. 25654 of 2005)
(S. B. Sinha and Markandeya Katju (Cj), JJ)
01.11.2006
S. B. SINHA, J.
Leave granted.
Appellant was engaged as a casual labour in the year 1978 for a period of four
months. He was posted in Ganj Basoda Station. Subsequently, he was appointed at
Bina Depot in the year 1981 and served upto 30.6.1982. He was appointed
similarly on a few more occasions and was declared as a monthly rated casual
labour in 1986. He was issued a service card wherein the details of his service
as a casual labour were recorded from time to time. Service Card contained the
particulars of the places, number of days and the capacity in which he had
worked.
Pursuant to or in furtherance of a scheme of regularization in 1989, his name
was short-listed. The service card was sent for verification. A purported
report dated 31.5.1990 was sent by an Electrical Foreman, Ganj Basoda
challenging that it was a fake one; whereupon a major penalty was imposed on
him, inter alia, on the charges; firstly, his service card bearing No. 303774
was fake; and secondly, that he secured employment on the basis of the fake
service card.
A departmental inquiry was initiated. The Inquiry Officer upon considering the
materials placed on records in his report, stated:-
"This employee worked with the Works Inspector (Pul) Beena. His record
was said to be at Beena with the IOW (East) but it came to be known from there
that the record I.O.W. (M) was with the petitioner. Having gone there the
matter was worked in to. There the full record of Works Inspector (Pul) Beena
became available. I.O.W. (M) Vidisha gave it in writing that Shri Mathura
Prasad S/o Babu Lal as per his service card No. 303774 worked under the Works
Inspector (Pul) Beena as canal Khalasi w.e.f. 30.6.81 to 18.7.81 who is
mentioned at S.No. 101 in the L.T.I. Register and at that time he was working
under the Works Inspector (Pul) Beena K.L. Shridhaaran. NCMR Sheet was also
seen. The name of the employee is mentioned in sheet No. 66253 of
18.7.81."
The disciplinary authority was, however, not satisfied with the report. It was
sent it back to the Inquiry Officer under a demi-official letter dated
2.11.1993 stating:-
"You were nominated as enquiry officer in case of S-5 served to Shri Mathura Prasad, MRCL Khalasi on dated 5.7.90. You have submitted your enquiry report on 15.10.93, while going through enquiry report, it is not clear how you have come on the conclusion and you have given the final findings.
The file is being sent to you back. Kindly submit your report giving clear
remarks about every points of charges framed in SF-5. You are hereby advised to
re-submit your enquiry report by enquiring properly to this office
immediately."
Without any further inquiry and without giving any further opportunity of
hearing to Appellant, the Inquiry Officer opined that the said service card was
fake, stating:-
"On 4.12.93 the perusal of the record of the matter of the A.R.E. Shri
S.C. Upadhyaya also was made and it was given in writing to Shri Mathura Prasad
S/o Babu Lal that the service card bearing No. 303774, the copy of which has
been given on 3.3.92 has not been issued by the R.T.I. (Sec) Gunjbasoda but
according to that your name has been showed against the T.I. of Phulle at S.No.
8 in the L.T.I. Register which has not been verified by any of the FRTI (Sec.)
which is at page No. 64 and bears the signatures of the ARE and Mathura Prasad.
From this thing it transpires that the card No. 303774, which has been given to
Mathura Prasad S/o Babu Lal, has not been issued by RTI (Sec.) Gunjbasoda.
Therefore, this card is forged."
Relying on or on the basis of said purported report of the Inquiry Officer,
punishment of removal from service was imposed by the disciplinary authority by
an order dated 26/28.4.1994. The punishment of removal of service of Appellant
was confirmed by an order dated 7.7.1994 passed by the Appellate Authority i.e.
Upper Divisional Electrical Engineer, Bhopal.
Appellant filed an Original Application before the Central Administrative
Tribunal, questioning the said order of the disciplinary authority as also the
Appellate Authority. By a judgment and order dated 13.2.2001, the Tribunal
allowed the said application and directed reinstatement of Appellant with
consequential benefit but with 50% back- wages. The Tribunal arrived at the
said conclusion on the premise that the disciplinary authority at the first
instance having differed with the findings of the Inquiry Officer was enjoined
with a duty to record reasons therefor and record its own findings on the said
charge that the evidence was sufficient for the purpose as required under Rule
10(3) of the Railway Servants (Discipline & Appeal) Rules, 1968 (for short
the Rules). It was further held by the Tribunal that there was no finding with
regard to endorsements of work rendered by Appellant between 1978 to 1986
contained in the service card of Appellant are inaccurate in particulars.
Respondent herein preferred a Writ Petition before the Madhya Pradesh High
Court thereagainst wherein, inter alia, it was contended that a finding of fact
having been arrived at by the disciplinary authority that the service card was
fake, the Tribunal could not have interfered therewith. It was further
contended that only because the entries therein were in relation to the service
by Respondent-Appellant, the same by itself was not a fresh ground for
overturning the finding of the disciplinary authority. The High Court agreed
with the said contentions and allowed the Writ Petition, inter alia, holding:-
"The Inquiry Officer surmised that as the entries in the service card was
not issued by the PW-1, Ganj Basoda, when he submitted the first report.
Therefore, the Disciplinary Authority wanted him to give specific findings
thereon and he gave further finding that the card was a fake. Therefore, the
second inquiry report is virtually a continuation of the first inquiry report
and the second report rightly considered the charge and recorded appropriate
findings therein which he had failed to do in the first report. The fact that
the first respondent might have served as Casual Labourer in the year 1978 and
again from 1981 to 1983 and from 1985 to 1989 as per the endorsements contained
in the service card, to repeat, is not relevant. The charge was not that the
first respondent did not serve during that periods. The charge was that he
obtained fake service card where several entries were genuinely made. It is
apparent that when such entries were made in the years 1981 and 1985, the
authorities were not aware that the service card was a fake. Only when it was
sent for verification to the authority who is said to have issued the service
card, it was found that the service card was not issued by that office and it
was realized that it was a fake."
The short question which falls for our consideration is application of
sub-Rules (2) and (3) of Rule 10 of the Rules.
Rules were framed by the Union of India in exercise of its jurisdiction under
the proviso appended to Article 309 of the Constitution of India. Sub- Rules
(2) and (3) of Rule 10 of the Rules read thus:-
"10. Action on the Inquiry report.
(1) .....
(2) The disciplinary authority, if it is not itself the inquiring authority
may, for reasons to be recorded by it in writing, remit the case to the
inquiring authority for further inquiry and report and the inquiring authority
shall thereupon proceed to hold further inquiry according to the provisions of
Rule 9 as far as may be.
(3) The disciplinary authority shall, if it disagrees with the findings of the
inquiring authority on any article of charge, regards its reasons for such
disagreement and record its own findings on such charge, if the evidence on
record, is sufficient for the purpose."
Indisputably the Inquiry Officer was enjoined with a duty to enquire into the
charges of misconduct levelled against Appellant. He enquired into the matter.
He found that the contents of the service card were correct. In other words,
the particulars in regard to the period of work, place of work and the nature
of work entered into therein were correct. He might not have been recorded that
the service card was genuine or fake but substance of the allegation against
Appellant was as to whether he had obtained an appointment by using a fake
service card.
The disciplinary authority merely sent a demi-official letter to the Inquiry
Officer. He did not pass any order. The file was sent back to him for a clear
remark on every point of charges framed against Appellant. It could not have
been either an order passed in terms of sub-Rule (2) of Rule 10 or sub-Rule (3)
thereof. The disciplinary authority was a statutory authority. He was,
therefore, bound to act within the four corners of the statute. Procedures
relating to conduct of a disciplinary proceeding have been laid down by the
Rules. He was bound to follow the same scrupulously. It is one thing to say
that he wanted the Inquiry Officer to state the points to clear the said
findings arrived at by him on each of the charges separately, but he did not
have his jurisdiction to issue the direction under either of the sub-rules of
Rule 10. Inquiry Officer held a further enquiry in furtherance of the direction
of the disciplinary authority. He proceeded on the basis that his Disciplinary
Authority required him to hold further enquiry. Inquiry Officer, therefore,
pursuant thereto or in furtherance of the said letter dated 2.1.1993 issued by
the disciplinary authority could not have arrived at a different finding, when
no further opportunity was given to Appellant herein and no reason was recorded
therefor. Even in his report dated 21.12.1993 he arrived at the conclusion that
the service card was forged only because the purported card had not been issued
by RTI (Sec), Ganj Basoda.
Whether any of the entries contained in the said card was correct or not, was
not verified. It could not have been held to have no relevance for arriving at
a finding that the same was a forged one.
Curiously the disciplinary authority in its order dated 26.4.1994, inter alia,
recorded:-
"I have decided to impose upon you the penalty of compulsory
retirement/removal/dismissal from service. You are therefore, compulsorily
retired/removed/dismissed from service with"
The punishment proposed was vague. The Tribunal, therefore, although relied on
sub-Rule (3) of Rule 10, in our opinion, arrived at the right conclusion as the
matter having not been remitted to the disciplinary authority for a further
inquiry under sub-Rule (2) of Rule 10 of the Rules, the same was illegal and
without jurisdiction. It had not been disputed before us and it would be a mere
repetition to state that the entries contained in the service record were
correct. The High Court, therefore, may not be correct in arriving at its
conclusion in its judgment.
The Inquiry Officer in his first report might not have specifically recorded
his findings with reference to each of the charges levelled against Appellant
but he arrived at a finding on analysis of the materials on record. If he was
to differ with the said findings on the basis of any fresh materials, he was
enjoined with a duty to grant another opportunity of hearing to Appellant.
Even if the Inquiry Officer had, in his first report, proceeded on surmises and
conjectures as was observed by the High Court, the disciplinary authority could
disagree with the said finding but it was, therefor, required to record its
reasons. No reason was recorded. Sub-Rules (2) and (3) of Rule 10 aim at
achieving the same purpose. If sufficient materials are not available on
record, a direction for holding a further inquiry may be issued in terms of
sub-Rule (2) of Rule 10 so as to enable the department to lead further evidence
before him. For the said purpose also, reasons are required to be
recorded by the disciplinary authority. An opportunity of hearing to the
delinquent officer is required to be given. However, in the event, the
disciplinary authority comes to the conclusion that the conclusion arrived at
by the Inquiry Officer on the basis of materials placed by the parties are
incorrect, he may disagree with the said findings but even, therefor, he is
required to record reasons in support thereof. The requirement of sub-Rule (2)
or sub-Rule (3) having not been complied with, the Inquiry Officer could not
have arrived at a different finding. The High Court unfortunately did not
consider this aspect of the matter.
When an employee, by reason of an alleged act of misconduct, is sought to be
deprived of his livelihood, the procedures laid down under sub- Rules are
required to be strictly followed. It is now well settled that a judicial review
would lie even if there is an error of law apparent on the face of the record.
If statutory authority uses its power in a manner not provided for in the
statute or passes an order without application of mind, judicial review would
be maintainable. Even an error of fact for sufficient reasons may attract the
principles of judicial review.
Shri S.N. Chandra Shekhar & Anr. v. State of Karnataka & Ors.
wherein this Court held:-
"34. The Authority, therefore, posed unto itself a wrong question.
What, therefore, was necessary to be considered by BDA was whether the
ingredients contained in Section 14-A of the Act were fulfilled and whether the
requirements of the proviso appended thereto are satisfied. If the same had not
been satisfied, the requirements of the law must be held to have not been
satisfied. If there had been no proper application of mind as regards the
requirements of law, the State and the Planning Authority must be held to have
misdirected themselves in law which would vitiate the impugned judgment.
35. In Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai, this Court
referring to Cholan Roadways Ltd. v. G. Thirugnanasambandam held:
(SCC p. 637, para 14)
14. Even a judicial review on facts in certain situations may be available. In
Cholan Roadways Ltd. v. G. Thirugnanasambandam, this Court observed: (SCC 253,
paras 34-35)
'34 It is now well settled that a quasi-judicial authority must pose unto
itself a correct question so as to arrive at a correct finding of fact. A wrong
question posed leads to a wrong answer. In this case, furthermore, the
misdirection in law committed by the Industrial Tribunal was apparent insofar
as it did not apply the principle of res ipsa loquitur which was relevant for
the purpose of this case and, thus, failed to take into consideration a relevant
factor and furthermore took into consideration an irrelevant fact not germane
for determining the issue, namely, that the passengers of the bus were
mandatorily required to be examined. The Industrial Tribunal further failed to
apply the correct standard of proof in relation to a domestic enquiry, which is
"preponderance of probability" and applied the standard of proof
required for a criminal trial. A case for judicial review was, thus, clearly
made out.
35. Errors of fact can also be a subject-matter of judicial review. (See E. v.
Secy. of State for the Home Deptt). Reference in this connection may also be
made to an interesting article by Paul P. Craig, Q.C. titled "Judicial
Review, Appeal and Factual Error" published in 2004 Public Law, p.
788.'"
(See also Sonepat Coop. Sugar Mills Ltd. v. Ajit Singh, SCC paras 23 & 24.)
36. The order passed by the statutory authority, it is trite, must be judged on
the basis of the contents thereof and not as explained in affidavit. (See
Bangalore Development Authority v. R. Hanumaiah)."
The said dicta shall apply to the facts of the present appeal also.
The impugned judgment, therefore, cannot be sustained. The appeal is, thus,
allowed. However, the matter is remitted to the disciplinary authority. It may
pass an appropriate order upon application of his mind afresh in the light of
the observations made hereinabove.
Appellant is entitled to costs. Counsel's fee assessed at Rs.15, 000/-.