Surendranath Behera v Union of India

IMPOSITION OF PUNISHMENT ON THE ADVICE OF UPSC WITHOUT PROVIDING A COPY OF THE SAME TO THE ACCUSED IN ADVANCE IS A VIOLATION OF THE PRINCIPLES OF NATURAL JUSTICE

FACTUAL BACKGROUND

1. The case of the Applicant is that while he was working as Senior Divisional Medical Officer, East Coast Railway, Bandamunda, he was caught red handed accepting an illegal gratification of Rs.1,000/- for granting prescription to a railway employee by the CBI. Accordingly, a CBI case vide R.C. Case No. 3 of 2009 was registered in the Court of the Special Judge, CBI, Bhubaneswar, which formed the subject matter in T.R. No. 33 of 2008 under Section 13(1)(d) read with Section 13(2) and Section 7 of the P.C. Act. Consequently, charge-sheet under Rule 9 of Railway Servant (D&A) Rules, 1968 was issued to him vide memorandum dated 09.01.2009.
2. The proceedings were culminated by imposition of penalty of withholding of 100% of the monthly pension on permanent basis and forfeiting the entire gratuity admissible to the Applicant vide order dated 21.11.2012. In the CBI case, the Applicant was acquitted honourably vide order dated 27.12.2012.
3. Thereafter, the Applicant filed application dated 18.02.2013 enclosing a copy of the judgment of the CBI Court seeking review of the order passed by the Disciplinary Authority, but the same was rejected vide order dated 19.03.2014, communicated to the Applicant vide letter dated 21.03.2014. Being aggrieved, the Applicant has filed present O.A. to quash the order of the Disciplinary Authority dated 21.11.2012 and the order dated 19.03.2014 of the Reviewing Authority.
4. The Applicant filed O.A. No. 260/00105 of 2015. Vide Order dated 30.07.2019, the learned CAT dismissed the OA and upheld the penalty imposed against the Applicant. Challenging the said order, the Applicant moved the Hon’ble High Court of Orissa in W.P.(C) No. 28791 of 2019.
5. The Hon’ble High Court of Orissa vide order dated 24.11.2022 quashed the order of the learned CAT dated 23.07.2019 for violation of Rules 105 of the CAT Rules of Practice, 1993 and without expressing any opinion on the merit, the Hon’ble High Court of Orissa remanded back the matter to learned CAT for re-adjudication after giving opportunity of hearing to both the parties.

Contention of the Appeal:

• CONTENTION OF THE APPLICANT

1. The Applicant argued that imposition of punishment of withholding 100% of monthly pension and forfeiture of gratuity and direct nexus to right to life under Article 21 of the Constitution and that the Hon’ble Apex Court in more than one occasion has cautioned that imposition of such punishment in a casual manner should be avoided.
2. The applicant, was accused of grave misconduct for violating the provisions of Indian Railway Medical Manual Volume 1, 3rd Edition- 2000, which states that medical attendance and treatment facilities should be available free of charge to all Railway Employees, their family members, and dependent relatives.
3. The CBI Court acquitted the petitioner, but the applicant was imposed with punishment without proving the essential ingredients of the charge sheet. The IO concluded that the charge was proved as the GC note was seized from the applicant's pocket, which is against the law and the order of the Learned Special Judge.
4. The UPSC vide letter dated 19.03.2012 based on the complaint of Sri Uday Singh Swaiyan dated 23.02.2008, opined imposition of punishment of withholding of 100% of monthly pension and forfeiture of entire gratuity.
5. It has been submitted that proof of demand and acceptance of illegal gratification must be established to the hilt for holding one guilty of receipt of illegal bribe. When the Complainant and witnesses had not supported the prosecution case with regard to demand of bribe by the Applicant, mere recovery of the tinted money diverse from the circumstances under which it is paid is insufficient to hold the charge as proved by the IO. The basis on which the IO held the charge proved is also not one of the allegations in the charge-sheet. In this regard, the learned counsel for the Applicant has placed reliance in the cases of Ramanlal Mohanlal Oandya vs. State of Bombay, AIR 1960 SC 961 and Suraimal vs. State, AIR 1979 SC 1408.
6. The learned counsel for the Applicant has also placed reliance in the decision of the Hon’ble Apex Court in the case of Panalal Damodar Rathi vs. State of Maharastra, 1979 (4) SCC 526 to state that when there is no corroboration of testimony of complaint regarding demand and acceptance of bribe, it is to be accepted that the version of the complainant is not corroborated and cannot be relied upon.
7. Next contention is that the decision-making process caused gross injustice by imposing punishment on the advice of the UPSC but without providing a copy of the same. They argue that this violation of natural justice principles prejudices the applicant and the order of punishment should be quashed.

• CONTENTION OF THE RESPONDENT

1. The respondents contested the applicant's case, arguing that the degree of proof in departmental proceedings and criminal cases differs, and that mere exoneration cannot affect the outcome of disciplinary proceedings. They argued that the applicant was imposed punishment due to an inquiry conducted against him, following the due procedure of rules.
2. The respondents argued that the applicant challenged the order of punishment and outcome of proceedings on technical grounds, claiming procedural irregularities and prejudice. They cited the Supreme Court's decision in State Bank of Patiala vs. S.K. Sharma, which stated that judicial review is not warranted even if there was procedural violation in the course of inquiry without prejudice.
3. The respondents argued that the Special Judge of the CBI had technically concluded that the prosecution's preparatory action was not in accordance with the law. They argued that the IO analyzed evidence and documents and found the applicant guilty of allegations, thus the OA filed by Applicant was liable to be dismissed.

FINDINGS OF THE COURT

• After considering all the submissions, it was clear that the CBI case involved allegations of demand and acceptance of illegal gratification, which was also the subject matter of the disciplinary proceeding. In the CBI case, the applicant was exonerated from the charges as the FIR was found to be weak which clearly showed that the super structure of the prosecution case was bound to collapse.
• In the case of G.M. Tank Vs. State of Gujarat (2006) 5 SCC 446, the Hon'ble Apex Court interfered in the imposition of punishment in disciplinary proceedings due to the applicant's exoneration in the criminal case.
• In the State Bank of India & Ors. Vs. D.C. Aggarwal & Anr. 1993 SCC (L&S) 109, the court observed that the non-supply of a CVC recommendation prepared behind the back of the respondent without their participation was violative of procedural safeguard and contrary to fair and just inquiry.
• In the case of Union of India & Ors Vs. S.K. Kapoor, the Hon'ble court ruled that if the authorities consult the Union Public Service Commission and rely on the report for taking disciplinary action, the principles of natural justice require that a copy of the report must be supplied in advance to the employee concerned so that they may have an opportunity of rebuttal.
• In the Present Case, the Disciplinary Authority accepted the UPSC's advice and imposed a 100% cut of pension and forfeiture of gratuity and then after the copy of the said advice and the order of punishment was supplied to the Applicant. Therefore, the court finds sufficient force on the submission of the counsel for Applicant that gross injustice was caused in the decision-making process and violation of natural justice principles.
• The denial of documents of the Applicant and the prayer to allow some witnesses on his behalf were rejected by the IO citing some grounds, which does not appeal to the judicial conscience, as held by this Hon'ble Court. Thus, the applicant's stand that he was prejudiced for such action of the IO is justified and held to be in violation of principles of natural justice.
• It is settled law that the compliance with natural justice is necessary in domestic/disciplinary inquiries, even without specific statutory rules. Further, it is stated that natural justice generally requires that persons liable to be directly affected by the proposed administrative acts, decisions or proceedings be given adequate notice of what is proposed so that they may be in a position (a) to make representation on their own behalf; (b) or to appear at a hearing or enquiry (if one is held); and (c) effectively to prepare their own case and to answer the case (if any) they had to meet.

JUDGEMENT

The Hon'ble Tribunal held that the punishment imposed on the applicant was in violation of the principles of natural justice and law discussed above, leading to the quashing of orders dated 21.11.2012 and 19.03.2014. The matter would have been remitted for reconsideration to comply with the principles of natural justice, but as the matter was ongoing for last 14 years, and taking into consideration the applicant's age, the present matter has been quashed. The respondents were directed to release the pension and pensionary dues of the applicant within 60 days of receiving a copy of the order.