Nasir Khan v. State Of Chhattisgarh
Page 1 of 1'0 NAFR HIGH COURT OF CHHATTISGARH, BILASPUR Writ Petition No.2615 of 2005 Nasir Khan, S/o Ismaii Khan, aged about 54 years, Occupation Deputy Ranger, Pali Forest Division Katghora, Distt.
Korba (C.G'.) ---- Petitioner
Versus
.
t K State Chhattisgarh, through Secretary, Departmen D..S. Bhawan, Raipur 2.
Principal hie Forest Cnservtor, hhattisgarh, Raipur Cf oa t 3.
Conservator of Forest, iiaspur, Sate of Chhattisgarh Through ecretary, Department Schooi Education, D.K.S.
Bhawan, S Raipur (C.G.) .
Commissior, Public Instruction, Raipur Division, Raipur (C.G.) ---- Respondts ne - en Fo Peoner:
Mrs. Haa Su, Advocate.
r titi mid iddlql For Respondents/State: Mr. Avinash Singh, Panel Lawye. r '
Honble Shri Justice Sanjay K. Agrawal Order On Board 27/02/201 7 1.
In a regular epartmental enquiry initiate against the petitier, d '
d Conservator of Forests by order dated 1-10-2002 reverted the petitioner from the post of Deputy Forest Ranger to Forest Guard and also imposed a penalty of i 1,20,034/- against which he preferred an appeal under the provisions of the Chhattisgarh Civil Services (Classification, Control and Appeal) Rules, (for short 'the 1966').
The its impugned dismissed appeal against which this writ petition has been preferred.
W.P.No.261 5/2005 Page 2 of 1O 2.
Mrs. Hamida Siddiqui, learned counsel for the petitioner, would submit that the order imposing punishment as well as the order deciding appeai are wholly unsustainable law therefore penalty as well as deserve to be set aside.
3.
On other hand, Mr. Avinash Singh, learned Panel Lawyer appearing for State/respondents, would oppose writ petition.
4.
i have heard learned counsel for the parties and considered the rival submissions made behalf parties also perused orders impugned as also other material available on record with utmost circumspection.
5. A careful perusal of the order under appeal would show that the petitioner's appeal preferred under Rule 24 of the Rules of 1966 has been decided in a very casual and unsatisfactory manner.
The appeal has been dismissed simply holding considering record comment made Forest Conservator, there is no substance in the appeal, and the appeal has been dismissed.
6.
Appeal was preferred petitioner under Rule 1966.
The manner of hearing appeal provided Rule 27 (2) ofthe Rules of 1966, which states as under: - "(2) case an appeal against an imposing any of the penalties specified in Rule 10 or enhancing any penalty imposed under said rules, the appellate authority shall consider-- (a) whether procedure laid down these rules has beengomplied with and if not, whether .v"
W.P.No.261 5/2005 Page 4 of 1'0 enhanced penalty."
. A careful perusal Rule would show authority is required to consider whether the procedure laid down in the has been complied with and if not, whether such non-compliance has resulted in the violation of any provisions of the Constitution of lndia or in the failure of justice; whether the findings disciplinary are warranted evidence record;
whether the penalty imposed commensurate with guilt delinquent Government servant, thereafter, has confirming, enhancing, reducing or setting aside the penalty or remitting the case to the authority concerned. , At this stage, reference may be made to the judgment Supreme Court matter Divisional Forest Qfficer, Kothagudem and others v. Madhusudhau Rao1 in which Their Lordships of the Supreme Court have clearly indicated that the appellate authority or the revisional authority while confirming the views disciplinary need not required give detailed reasons, but brief reasons should be recorded showing application of mind, and observed as under: - "19.
Having considered the submissions made on behalf respective patties also having regard to the detailed manner in which the Andhra Pradesh Administrative Tribunal had dealt with matter, including the explanation given regarding the disbursement money received respondent, we see no reason to differ with the view taken by the Administrative Tribunal and endorsed by the High Court.
No doubt, the Divisional Forest Officer dealt with the matter in detail, but it was also the duty to give at least N*.x,'K (2008) 3 SCC 469
@ / some reasons for rejecting the appeal preferred by respondent.
similar duty was cast revisionai authority being the highest authority in the Department of Forests in the State.
Unfortunateiy, even revisionai has mereiy indicated that the decision of the Divisional Forest Officer had been examined Conservator Forests, Khammam wherein the charge of misappropriation was clearly proved.
He too did not consider the defence case as made out by the respondent herein simply endorsed punishment of dismissal though reducing it to removal from service.
19.
It no doubt also true that an or revisionai not required to give detailed reasons for agreeing confirming an passed by the lower forum but, in our view, in the interests of justice, the delinquent officer is entitled know at least mind or revisionai in dismissing his appeal and/or revision.
lt true no detailed reasons are required to be given, but some brief reasons should be indicated eVen in an order affirming the views of the lower forum."
9.
But position would be quite different.
If the statutory provisions governing consideration of appeal are taken into consideration, a duty cast applicable rules record reasons application of mind.
ln matter of RP.
Bhatt v.
Union Indiaz, the Delhi High Court dismissed the writ petition in Iimine. The short point involved for consideration appeal, was whether the appellate order passed by the DGBR dt. 12-10-1980 was in conformity with the requirement of Rule 27(2) of the CCA Rules.
The Supreme Court allowing the appeal and directing to dispose appeal afresh after applying his mind'to requirement of Rule 27(2), held as under: - "4.
The'word 'consider' in Rule 27(2) implies 'due application of mind'.
It clear upon the terms Rule 27(2) that the appellate authority is required to consider- (1) whether the procedure laid down in the (1986) 2 SCC 451 ti
Page 6 of 1'0 Rules has been complied with; and if not, whether such non-compliance has resulted in violation of any provisions of the Constitution or in failure ofjustice;
(2) whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) whether penalty imposed adequate;
thereafter pass orders confirming, enhancing etc.
penalty, or may remit back case authority which imposed the same.
Rule 27(2) casts a duty consider relevant factors set forth clauses (a), b) ad (c) thereof.
( 5.
There is no indication in the impugned order that the Director General was satisfied as to whether procedure laid down had been complied with;
if not, whether such noncompliance had resulted violation of any provisions of the constitution or in failure of justice. We regret to find that the DG has also not given any finding crucial question as whether findings of the disciplinary authority were warranted by the'evidence on record.
It seems that he only applied his mind to the requirement of clause (c) of Rule 27(2), viz.
whether the penalty imposed was adequate orjustified in the facts and circumstances present case.
There being non-compliance with the requirements of Rule 27(2) ofthe Rules, the impugned order passed by the Director General liable to be set aside."
10. ln the matter of Ram Chander v.
Union India3 central question before Supreme Court was whether passed Railway Board dismissing appeal, was conformity with requirements of Rule 22(2) Railway Servants (Disciplinary and Appeal) Rules, 1968, which is similar to Rule 27(2) of the CCA Rules.
The Supreme Court noticing R.P.
Bhatt (supra), held must afford opportunity of hearing pass a reasoned order even if the is one of affirmance.
Paragraphs 5 and report state as under: - (1986) 3 SCC 103 .\.§'
@ ;
.
"5.
To say least, this just a mechanical reproduction of the phraseology of Rule 22(2) of the Railway Servants Rules without any attempt on the part Railway Boardoeither marshal evidence on record with a View to decide whether the findings arrived at by the disciplinary could be sustained or not.
There also no indication that the Railway Board applied its mind as whether act misconduct with which appellant was charged together with attendant circumstances and the past record of the appellant were such that he should have been visited with the extreme penalty or removal from service for a single lapse in a span of 24 years of service.
Dismissal or removal from service is a matter of grave concern to a civil servant who after such a long period service, may not deserve such a harsh punishment. There being non-compliance with the requirements of Rule 22(2) Railway Servants Rules, impugned passed Railway Board liable to be set aside.
9.
These authorities proceed upon the principle that in the absence of a requirement in the statute or rules, there no duty cast an authority to give reasons where the order is one of affirmance.
Here, Rule 22(2) Railway Servants express terms requires Railway Board record its findings three aspects stated therein.
Similar are the requirements under Rule 27(2) Central Civil Services (Classification, Control Appeal) Rules, 1965.
Rule 22(2) provides in the case of an appeal against an imposing any penalties specified Rule ,6 or enhancing any penalty imposed under the said rule, the appellate authority shall 'consider' as to the matters indicated therein.
The word 'consider' has different shades of meaning must Rule 22(2), the context in which it appears, mean an objective consideration Railway Board after due application of mind which implies the giving of reasons for its decision." Further, amendment clause (2) Article Constitution lndia Constitution (Forty-Second Amendment) Act, consequential change was explained and held as under: - "25.
Such being legal position, it utmost lmportangg'I/aftegri/tbgJewaecond
W.P.No.261 5/2005 Amendment as interpreted majority Tulsiram Patel case"
Appellate Authority must not only'give a hearing government servant concerned but also pass a reasoned order dealing with contentions raised him appeal.
We wish emphasize reasoned decisions by tribunals, such as the Railway Board in the present case, will promote public confidence administrative process.
An objective consideration possible only if delinquent servant is heard and given a chance to satisfy the regarding final orders may be passed on his appeal.
Considerations of fair play and justice also require that such a personal hearing should be given."
After allowing the appeal it was directed that the Railway Board should hear and dispose of the appeal after affording a personal hearing appellant merits a reasoned conformity with the requirement of Rule 22(2), as expeditiously as possible.
11.
ln matter'
Ravi Yashwant Bhoir v.
Collector5, Supreme Court while highlighting rationale behind requirement recording reasons held right reasons is an indispensable part of sound judicial system and observed as under: - "The expanding horizon principles of natural justice provides for requirement record reasons as it is now regarded as one principles natural justice.
The emphasis on recording reasons is that if the decision reveals the "inscrutable face of thevsphinx", it can its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review adjudging validity decision.
Right reason is an indispensable part of a sound judicial system, reasons at least sufficient indicate an application of mind of the authority before the court. Another rationale is that the affected party can know why the decision has gone against him.
One of the Union of India v. Tsiram Patel, (1985) 3 SCC 398 ul (2012) 4 SCC 407 he?
\ \x'
3w ;
Page 9 of 1'0 salutary requirements natural justice spelling out the reasons for the order made, in other words, a speaking out.
The inscrutable face of the sphinx ordinarily incongruous with a judicial or quasijudicial performance."
12. Examining the impugned order in the touchstone of Rule 27 (2) of the Rules of 1966 and on the principles of law laid down by the Supreme Court in afore-stated judgments, it is quite apparent that the petitioner has filed appeal and raised number of grounds which clearly require consideration, particularly in light of Rule 27 (2).
Despite raising specific grounds and despite Rule 27(2) of CCA requiring consider those grounds, the appellate authority has failed to consider any such grounds raised by the petitioner and dismissed the appeal petitioner.
The manner which disciplinary authority has been affirmed clearly reflects total nonapplication of mind. No reasons have been assigned affirming the order of the disciplinary authority.
13. in View of the above, petition succeeds and the impugned order passed by the appellate authority deserves to be and accordingly, set aside.
The Principal Chief Conservator Forests - respondent No.2 is directed to consider the appeal of the petitioner dealing with all the grounds raised therein.
Since order was passed 5-11-2004, authority would decide and consider the appeal within 45 days from date receipt a copy this order, taking into consideration the grounds raised by the petitioner in accordance with Rule 27 (2) of the Rules of 1966.
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14. The writ petition is allowed to the extent indicated herein-above. No order as to costs.
i .
Sd/.
SanJay K. AgraWa, Judge «3