Debasri Deb v. Union Of India

Ajai Lamba, C.J.:— Smt. Debasri Deb has preferred this petition for issuance of a writ in the nature of certiorari quashing order dated 21.2.2019 rendered by Central Administrative Tribunal, Guwahati Bench (for short, ‘CAT’) while dealing with O.A. No. 040/00262/2015 in case titled ‘Smt. Debasri Deb v. Union of India’, appended to the petition as Annexure-13.

2. The petitioner also seeks issuance of a writ in the nature of certiorari quashing order dated 9.6.2014, appended to the petition as Anexure-5; and order dated 22.1.2015 appended to the petition as Annexure-7.

3. We have taken notice of the fact that the above noted orders along with enquiry report dated 3.10.2013, chargesheet dated 7.2.2014 were also challenged before the CAT.

4. Sequence of events leading to filing of the Original Application is that an incident happened on 27.9.2013 and accusation was made against the writ petitioner for inflicting corporal punishment on 47 girl students by slapping; and beating them with stick in which the girl students had to be sent to hospital for treatment.

5. It appears that an inquiry was conducted in regard to the accusation. The inquiry report is available on record as Annexure-1. Some witnesses were examined. When the petitioner was confronted with the accusation, it appears that the petitioner took a stand that she had given beating to the students with a view to control them so that they do not become indisciplined. We find that the inquiry report is dated 3/10/2013.

6. Annexure-2 dated 8.10.2013 is an order vide which the services of the petitioner were placed under suspension with immediate effect.

7. Annexure-3 dated 7.2.2014 is a Memorandum accompanied with Article of Charge, Annexure-1 to the said document. Vide said document, the Deputy Commissioner conveyed to the petitioner that it is proposed to hold an inquiry against her under Rule 14 of Central Civil Services (Classification, Control and Appeal) Rules, 1965 [for short, CCS (CCA) Rules, 1965]. The substance of charge was enclosed with the Memorandum.

8. In Para 3 of the Memorandum (supra), it was made clear that inquiry would be held only in respect of those articles of charges which are not admitted. Under the circumstance, the petitioner was asked to specifically admit or deny each articles of charge.

9. The charge dated 7.2.2014 itself is required to considered exactly and is extracted hereibelow:

“Smt. Debashree Deb, PGT (Chem), JNV Kokrajhar on 27.09.2013 had inflicted corporal punishment on 47 girl students by slapping and beating with stick in which the girl students was sent to the nearby hospital for treatment. Smt. Debashree Deb has failed her duties which is unbecoming of a Government Servant and has contravened rule 3(1)(iii) of CCS (Conduct) Rules 1964.”.

10. It appears that on receipt of Memorandum dated 7.2.2014 and the Article of Charge, the petitioner on 15.2.2014 admitted the charge.

11. We have gone through the contents of document dated 15.2.2014 appended to the petition as Annexure-4. It has been written in hand, apparently by the petitioner, and clearly states that the petitioner be forgiven for the mis-happening occurred which will not be repeated in future. The document authored by the petitioner specifically states that she admits misconduct on her part, which should not have been there.

12. Vide order dated 9.6.2014 (Annexure-5), penalty of withholding one increment for three years with cumulative effect was imposed on the petitioner effective from the date of next increment as admissible under the rules.

13. On going through the document, we find that the penalty was imposed considering that the petitioner admitted all the charges framed against her. Anexure-5, dated 9.6.2014 has been challenged by virtue of this petition.

14. The other order impugned in the Original Application before the Administrative Tribunal and before this Court in writ jurisdiction is order dated 22.1.2015 appended with the petition as Annexure-7 which is an office order issued in consequence to the penalty imposed on the petitioner. The office order only indicates the basic pay payable to the petitioner on the one side and the pay to be drawn by the petitioner in view of the penalty on the other side.

15. Having gone through the document, we find that for three years the increment payable to the petitioner was withheld. We find the order to be in conformity with the order vide which penalty was imposed on the petitioner i.e. Annexure-5 dated 9.6.2014.

16. It appears that the petitioner preferred statutory appeal against order dated 9.6.2014 vide which penalty was imposed. Since the appeal was beyond limitation, hence, the same was dismissed as being time barred vide order dated 22.4.2015 (Annexure-10).

17. Surprisingly, the petitioner has not challenged order dated 22.4.2015 placed on record as Annexure-10.

18. Contention of learned counsel for the petitioner is that in regard to the same incident of beating 47 girls, criminal charges were brought against the petitioner. The petitioner was acquitted of the criminal charges. The issue being the same, even in the disciplinary proceedings, the petitioner could not have been proceeded against. In this regard, learned counsel has referred to the judgment dated 13.10.2014 rendered by Chief Judicial Magistrate, Kokrajhar in G.R. Case No. 905/13 titled ‘State v. Smti. Debasri Deb’. The document is available at Page-28 (Annexure-6).

19. Learned counsel for the petitioner in this regard has relied on the decision of the Hon'ble Supreme Court in the case of G.M. Tank v. State of Gujarat, reported in (2006) 5 SCC 446 : AIR 2006 SC 2129.

20. We have referred to the judgment rendered by the Hon'ble Supreme Court in the case of G.M. Tank (supra). The decision in the said case would have no application to the facts and circumstances of the case at hand for the simple reason that the order of penalty in the instant case was passed in view of the fact that the delinquent/writ petitioner admitted the charges levelled against her and admitted her misconduct. The Memorandum dated 7.2.2014 (supra) served on the petitioner made it clear to the petitioner that the petitioner may specifically admit or deny the charge and inquiry would be held only in respect of those articles of charges which are not admitted.

21. We would like to refer to a decision of the Hon'ble Supreme Court in the case of Commissioner of Police, Commissioner Of Police, New Delhi v. Narender Singh., reported in (2006) 4 SCC 265 on the proposition of law raised by learned counsel for the petitioner.

22. Following has been held in Paragraphs 12 and 13 of the said judgment:

“12. It is not in dispute that the standard of proof required in recording a finding of conviction in a criminal case and in a departmental proceeding are distinct and different. Whereas in a criminal case, it is essential to prove a charge beyond all reasonable doubt, in a departmental proceeding preponderance of probability would serve the purpose.

13. It is now well settled by reason of a catena of decisions of this Court that if an employee has been acquitted of a criminal charge, the same by itself would not be a ground not to initiate a departmental proceeding against him or to drop the same in the event an order of acquittal is passed.”.

(emphasized by us)

23. From the above extracted portion, it becomes evident that the Hon'ble Supreme Court held that standard of proof required in recording a finding of conviction in a criminal case and in a departmental proceeding are distinct and different. In a criminal case it is essential to prove a charge beyond all reasonable doubt. In a departmental proceeding preponderance of probability would serve the purpose. As a corollary, it has been held that even if an employee has been acquitted of a criminal charge (as in the case under adjudication), the same itself would not be a ground not to initiate a departmental proceeding against him/her or to drop the same in the event an order of acquittal is passed. This would be more so in case of present nature wherein the petitioner/delinquent specifically admitted her misconduct in writing. There was no such admission on the part of the delinquent before the court trying her of committing criminal offence.

24. Learned counsel for the petitioner has also raised the issue that major penalty has been imposed on the petitioner.

25. We have considered the contention of learned counsel in context of CCS (CCA) Rules, 1965. Bare perusal of Rule 11 of the said Rules indicates that amongst the penalties, minor penalties included at sub-rule (iv) is “withholding of increments of pay”.

26. We have confronted learned counsel for the respondents with the said Rule position in context of office order dated 22.1.2015 (Annexure-7).The said office order which has been passed consequent to imposition of penalty mentions ‘major penalty’. Learned counsel for the respondents contends that it is apparent that a clerical error has been committed while drawing the office order vide which pay of the petitioner to be drawn has been calculated.

27. We, having considered the order of penalty itself which is dated 9.6.2014 (Annexure-5), find that in fact the said order does not mention that it is a major penalty imposed on the petitioner. In such circumstances, we find no merit in the contention of learned counsel for the petitioner. The mere mention of ‘major’ penalty in an order that does not impose penalty would ordinarily not affect the rights of the delinquent. As mentioned in earlier part of the judgment, order dated 22.1.2015 (Annexure-7) is merely an order calculating the pay to be drawn by the delinquent after giving effect to the order imposing penalty Annexure-5 dated 9.6.2014. Order Annexure-7 dated 22.1.2015 is only an order passed in consequence to the order vide which penalty was imposed viz. order dated 9.6.2014, Annexure-5.

28. Having considered all the facts and circumstances of the case, we are of the considered view that the petitioner did not challenge the order passed by the statutory appellate authority. Statutory appeal of the petitioner was dismissed vide order dated 22.4.2015 (Annexure-10). The penalty imposed by the disciplinary authority vide order dated 9.6.2014 (Annexure-5) has been upheld. Although the appeal was dismissed being time barred, however, it was incumbent on the writ petitioner to have challenged the said order in the Original Application, and before this Court, if necessary.

29. We have considered the issue in context of power of the writ court to judicially review an administrative action. In this regard, we deem it appropriate to refer to the relevant portion of judgment dated 17.9.2019 rendered by the Hon'ble Supreme Court in Civil Appeal Nos. 7319-7320 of 2019 in the case of Municipal Council, Neemuch v. Mahadeo Real Estate, wherein it has been held as under:

“14. ….. However, before doing that, we propose to examine the scope of the powers of the High Court of Judicial review of an administrative action. Though, there are a catena of judgments of this Court on the said issue, the law laid down by this Court in the case of Tata Cellular v. Union Of India. reported in (1994) 6 SCC 651 lays down the basic principles which still hold the field. Paragraph 77 of the said Judgment reads thus:

“77. The duty of the court is to confine itself to the question of legality. Its concern should be:

1. whether a decision-making authority exceeded its powers?

2. committed an error of law,

3. committed a breach of the rules of natural justice,

4. reached a decision which no reasonable tribunal would have reached or,

5. abused its powers.

Therefore, it is not for the court to determine whether a particular policy or particular decision taken in the fulfilment of that policy is fair. It is only concerned with the manner in which those decisions have been taken. The extent of the duty to act fairly will vary from case to case. Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:

(i) Illegality: This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.

(ii) Irrationality, namely, Wednesbury unreasonableness.

(iii) Procedural impropriety.

The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind, (1991) 1 AC 696 Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, ‘consider whether something has gone wrong of a nature and degree which requires its intervention’”

15. It could thus be seen that the scope of judicial review of an administrative action is very limited. Unless the Court comes to a conclusion, that the decision maker has not understood the law correctly that regulates his decision-making power or when it is found that the decision of the decision maker is vitiated by irrationality and that too on the principle of “Wednesbury Unreasonableness” or unless it is found that there has been a procedural impropriety in the decision-making process, it would not be permissible for the High Court to interfere in the decision making process. It is also equally well settled, that it is not permissible for the Court to examine the validity of the decision but this Court can examine only the correctness of the decision making process.

16. This Court recently in the case of West Bengal Central School Service Commission v. Abdul Halim reported in 2019 SCC OnLine SC 902 had again an occasion to consider the scope of interference under Article 226 in an administrative action.

“31. In exercise of its power of judicial review, the Court is to see whether the decision impugned is vitiated by an apparent error of law. The test to determine whether a decision is vitiated by error apparent on the face of the record is whether the error is self-evident on the face of the record or whether the error requires examination or argument to establish it. If an error has to be established by a process of reasoning, on points where there may reasonably be two opinions, it cannot be said to be an error on the face of the record, as held by this Court in Satyanarayan v. Mallikarjuna reported in AIR 1960 SC 137. If the provision of a statutory rule is reasonably capable of two or more constructions and one construction has been adopted, the decision would not be open to interference by the writ Court. It is only an obvious misinterpretation of a relevant statutory provision, or ignorance or disregard thereof, or a decision founded on reasons which are clearly wrong in law, which can be corrected by the writ Court by issuance of writ of Certiorari.

32. The sweep of power under Article 226 may be wide enough to quash unreasonable orders. If a decision is so arbitrary and capricious that no reasonable person could have ever arrived at it, the same is liable to be struck down by writ Court. If the decision cannot rationally be supported by the materials on record, the same may be regarded as perverse.

33. However, the power of the Court to examine the reasonableness of an order of the authorities does not enable the Court to look into the sufficiency of the grounds in support of a decision to examine the merits of the decision, sitting as if in appeal over the decision. The test is not what the Court considers reasonable or unreasonable but a decision which the Court thinks that no reasonable person could have taken, which has led to manifest injustice. The writ Court does not interfere, because a decision is not perfect.”

17. It could thus be seen that an interference by the High Court would be warranted only when the decision impugned is vitiated by an apparent error of law, i.e., when the error is apparent on the face of the record and is self evident. The High Court would be empowered to exercise the powers when it finds that the decision impugned is so arbitrary and capricious that no reasonable person would have ever arrived at. It has been reiterated that the test is not what the court considers reasonable or unreasonable but a decision which the court thinks that no reasonable person could have taken. Not only this but such a decision must have led to manifest injustice.

(Emphasised by us).”

30. Having considered the nature of charge against the petitioner which is of giving beating to 47 girl students; petitioner having admitted her guilt and misconduct in writing; petitioner having been given due opportunity of hearing before passing the order of punishment and the petitioner not having challenged the order passed on her statutory appeal, we find no ground to judicially review the administrative action taken by the respondents in imposing penalty of withholding one increment for three years with cumulative effect.

31. In the considered opinion of the Court in context of corporal punishment imposed by the petitioner on as many as 47 girl students, the penalty imposed on the petitioner is certainly commensurate with the action/misconduct of the petitioner.

32. In view of the above, we find no reason to interfere with the decision rendered by the Administrative Tribunal. We further find no reason to interfere with the orders passed by the respondent authorities in imposing penalty on the petitioner.

33. For the reasons recorded hereinabove, the writ petition is dismissed.