RICHARD CHAND vs DEPARTMENT OF WATER RESOURCES, RIVER DEVELOPMENT & GANGA REJUVENATION
- Court
- Central Administrative Tribunal
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CENTRAL ADMINISTRATIVE TRIBUNAL
GUWAHATI BENCH
[Reserved]
Original Application No. 40/173/2024
Reserved on: 19.08.2026
Pronounced on: 22.09.2026
Coram:-
HON’BLE MR. RAJINDER SINGH DOGRA, JUDICAL MEMBER
HON’BLE MS. MALLIKA ARYA, ADMINISTRATIVE MEMBER
Between
Shri Richard Chand,
Assistant Engineer
Electro-Mechanical Sub-Division,
Bratunaputra Board, Basistha,
Guwahati- 781029.
R/o Vijaya Orchid, Flat No. 1 (C),
Ajanta Path, Survey,
Beltola-781028, Kamrup (M).
......Applicant
[By Advocate: Mr. M. Chanda, Mrs. U. Dutta, Ms. S. Choudhury]
-AND-
1. The Union of India,
Represented by the Secretary
to the Government of India,
Ministry of Jal Shakti,
Department of Water Resources,
RD&GR, New Delhi - 110001.
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2. The Chairman,
Brahmaputra Board, Basistha,
Guwahati- 781029.
3. The Secretary,
Brahmaputra Board,
Basistha, Guwahati- 781029.
....Respondents
[By Advocate: Mr. S.K. Ghosh, Addl. CGSC ]
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ORDER
PER R.S. DOGRA, MEMBER (J):
The instant OA has been filed by the applicant praying for
the following relief(s):-
“8.1 That the Hon'ble Tribunal be pleased to direct the
respondents to ante-date promotion of the applicant at
least with effect from 18.12.2019 on notional basis in
modification of the order dated 14.02.2023 (ANNEXURE-
A9) with all consequential benefits and further be pleased
to direct the respondents to promote the applicant to the
post of Assistant Executive Engineer w.e.f. 17.10.2022 or
from any other date as deem fit and proper at par with
applicants batch mates in the light of the promotion order
dated 17.10.2022 (Annexure-A/10).
8.2 That the Hon'ble Tribunal be pleased to declare that
the Memorandum of Chargesheet dated 19.09.2019
(Annexure-A/3) as well as consequential penalty order
dated 11.08.2022 (Annexure-A7) are void ab-initio.
8.3 Any other relief or reliefs as the Hon'ble Tribunal
may deem fit and proper, including the cost of the case.”
2. This application is preferred by the applicant praying
for a direction upon the respondents to ante-date promotion of
the applicant to the post of Assistant Engineer at least w.e.f.
18.12.2019 on notional basis i.e., the date from which his
batch mates had been promoted, with all consequential
benefits and to consider his further promotion to the post of
Assistant Executive Engineer in accordance with the
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reservation roster against the vacancy of ST category with a
further prayer to declare that the memorandum of Charge
Sheet dated 19.09.2019 issued under Rule 11 of CCS(CCA)
Rule, 1965 and the impugned consequential Penalty Order
dated 11.08.2022 imposing penalty of Censure under Rule 11
(i) of CCS (CCA) Rules, 1965 are void ab-initio since there is no
provision to initiate any departmental proceedings under Rule
11 of CCS (CCA) Rules, 1965 rather Rule 11 of CCS (CCA) rules
provides for nature of statutory penalties. Since, the
memorandum of chargesheet dated 19.09.2019 itself is
defective/invalid, consequential order of penalty is void ab-
initio. Further, as per the applicant, the respondents have
wrongly adopted the sealed cover procedure in the case of the
present applicant when there was no Departmental
Proceedings pending against the applicant either under Rule
16 or Rule 14 of the CCS (CCA) Rule, 1965 and on that score
alone, the sealed cover procedure which was wrongly adopted
by the respondents- Brahmaputra Board is liable to be re-
opened and in the event of recommendation of the case of the
present applicant, promotion to the Grade of Assistant
Engineer may be given retrospectively at par with his batch-
mates with all consequential benefits, including promotion to
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the cadre of Assistant Executive Engineer by holding review
DPC. Hence, the present O.A.
3. Learned counsel for the Respondents has filed his
written statement, wherein he avers that the Applicant was
working on loan basis in the Office of the Chief Engineer,
Brahmaputra & Barak Basin Organization, Central Water
Commission w.e.f. 22.12.2016 to 30.06.2018. Chief Engineer,
Brahmaputra & Barak Basin Organization, Central Water
Commission vide letter no. BBB/CWC/PF-182/2017, dated
03.05.2019 reported that the applicant did not attend to his
duties w.e.f. 05.01.2018 to 30.06.2018 nor did he submit any
proper leave application to the concerned authority of CWC
except for his leave application dated 23.01.2018. Thereafter,
Brahmaputra Board vide letter no. BB/3444/11/89, dated
03.06.2019 requested the applicant to furnish his
comments/explanations in the matter with all
supporting/relevant documents within 07 (seven) days. In
absence of any sufficient explanation from the applicant,
inquiry proceeding was initiated against him and the
Memorandum of Charge Sheet dated 19.09.2019 under Rule
11 of CCS (CCA) was issued by giving him opportunity to make
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representation against the proposal. The IA had submitted the
report wherein the charges against the applicant stands proved
as being unauthorised absentee. Thereafter, minor penalty of
CENSURE was imposed upon the applicant vide Order dated
11.08.2022. However, Departmental Promotion Committee
(DPC) in its meeting held on 21.06.2019 kept the matter of
promotion of the applicant in a sealed cover and recommended
to promote him in regular manner under reserved vacancy for
ST to the Post of Assistant Engineer (Civil/Mech) during the
vacancy year 2019 (01.01.2019 to 31.12.2019) subject to the
clearance of departmental proceedings against him.
Learned counsel for the respondents has drawn attention
to RR 2019 of Brahmaputra Board, the eligibility criteria for
promotion to the Grade of Assistant Executive Engineer
(Civil/Mechanical) is as under: "Assistant Engineer
(Civil/Mechanical) of Brahmaputra Board in level-7 (Rs.44, 900
- 1,42,400/-) in pay matrix with three years regular service in
the grade rendered after appointment thereto and who have
passed the prescribed departmental examination. Applicant
was promoted to the grade of Assistant Engineer
(Civil/Mechanical) on 14.02.2023 and hence has not completed
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requisite qualifying service of minimum 03 (three) years in the
Grade of Assistant Engineer (Civil), Brahmaputra Board. Under
these circumstances, this application is neither legally tenable
nor factually maintainable and as such, the original application
is liable to be dismissed with cost.
4. Learned counsel for the Applicant has filed rejoinder,
wherein he avers that the respondents have admitted that the
memorandum of charge sheet dated 19.09.2019 has been
initiated under Rule 11 of CCS (CCA) rules 1965; however, it is
specifically stated that no minor penalty proceedings could be
initiated against an employee under rule 11 of CCS(CCA) 1965.
As such, the memorandum of charge sheet dated 19.09.2019
cannot be treated as a charge sheet under any of the relevant
provision of the CCS (CCA) rule 1965. Therefore, the order of
penalty of CENSURE imposed upon the applicant vide penalty
order dated 11.08.2022 cannot be sustained in the eyes of law.
Besides, adoption of sealed cover with regard to findings of DPC
held on 21.06.2019 before issuance of charge sheet dated
19.09.2019 cannot be sustained in the eye of law and the said
sealed cover need to be opened and the findings of the DPC
held on 21.06.2019 for promotion to the post of Assistant
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Engineer against the vacancy in the year 2019 need to be given
effect and applicant be promoted to the post of Assistant
Engineer with all consequential benefits including promotion
to the grade of Assistant Executive Officer with effect from
17.10.2022 or from any other date as deem fit and proper.
5. Heard the parties and perused the records.
6. After assessing the entire records and submission of
both the sides, it is noted that no minor penalty proceedings
could be initiated against an employee under rule 11 of
CCS(CCA) rule 1965, which has been done in the case of the
applicant. The question of clearance of departmental
proceeding does not arise at all when there was no proceeding
pending against the applicant either under rule 14 or rule 16
of the CCS (CCA) rule 1965; as such, respondents are not
legally entitled to adopt the sealed cover procedure with regard
to the findings of the DPC held on 21.06.2019. Besides, penalty
of imposition of ‘censure’ upon the applicant has been imposed
in the absence of any charge sheet either under rule 14 or
under rule 16 of CCS (CCA) rule 1965.
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It is an admitted position by both the parties that the
chargesheet was given to the petitioner under Rule 11 which
is not a relevant rule in the enquiry as the same was to be
instituted either under Rule 14 or Rule 16 of the CCS(CCA)
Rules, 1965. We have also gone through the verdict of the
Hon’ble Supreme Court delivered in the matter of Union of
India & Ors. v. Subrata Nath, Civil Appeal Nos.—of 2022
rd
@ SLP (C) No. 3524 of 2022 dated 23 November, 2022
[2022 SCC Online 1617], wherein the Hon’ble Apex Court
has observed and held as follows:
“15. It is well settled that courts ought to refrain from
interfering with findings of facts recorded in a
departmental inquiry except in circumstances where
such findings are patently perverse or grossly
incompatible with the evidence on record, based on no
evidence. However, if principles of natural justice have
been violated or the statutory regulations have not been
adhered to or there are malafides attributable to the
Disciplinary Authority, then the courts can certainly
interfere.
16. In the above context, following are the observations
made by a three-Judge Bench of this Court in B.C.
Chaturvedi (supra):
“12. Judicial review is not an appeal from a
decision but a review of the manner in which the
decision is made. Power of judicial review is meant
to ensure that the individual receives fair
treatment and not to ensure that the conclusion
which the authority reaches is necessarily correct
in the eye of the court. When an inquiry is
conducted on charges of misconduct by a public
servant, the Court/Tribunal is concerned to
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determine whether the inquiry was held by a
competent officer or whether rules of natural
justice are complied with. Whether the findings or
conclusions are based on some evidence, the
authority entrusted with the power to hold inquiry
has jurisdiction, power and authority to reach a
finding of fact or conclusion. But that finding
must be based on some evidence. Neither the
technical rules of Evidence Act nor of proof of fact
or evidence as defined therein, apply to
disciplinary proceeding. When the authority
accepts that evidence and conclusion receives
support therefrom, the disciplinary authority is
entitled to hold that the delinquent officer is guilty
of the charge. The Court/Tribunal in its power of
judicial review does not act as appellate authority
to reappreciate the evidence and to arrive at its
own independent findings on the evidence. The
Court/Tribunal may interfere where the authority
held the proceedings against the delinquent
officer in a manner inconsistent with the rules of
natural justice or in violation of statutory rules
prescribing the mode of inquiry or where the
conclusion or finding reached by the disciplinary
authority is based on no evidence. If the
conclusion or finding be such as no reasonable
person would have ever reached, the
Court/Tribunal may interfere with the conclusion
or the finding, and mould the relief so as to make
it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of
facts. Where appeal is presented, the appellate
authority has coextensive power to reappreciate
the evidence or the nature of punishment. In a
disciplinary inquiry, the strict proof of legal
evidence and findings on that evidence are not
relevant. Adequacy of evidence or reliability of
evidence cannot be permitted to be canvassed
before the Court/Tribunal. In Union of India v.
H.C. Goel6 this Court held at p. 728 that if the
conclusion, upon consideration of the evidence
reached by the disciplinary authority, is perverse
or suffers from patent error on the face of the
record or based on no evidence at all, a writ of
certiorari could be issued.
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xxx xxx xxx xxx xxx xxx
18. A review of the above legal position would
establish that the disciplinary authority, and on
appeal the appellate authority, being fact-finding
authorities have exclusive power to consider the
evidence with a view to maintain discipline. They
are invested with the discretion to impose
appropriate punishment keeping in view the
magnitude or gravity of the misconduct. The High
Court/Tribunal, while exercising the power of
judicial review, cannot normally substitute its
own conclusion on penalty and impose some
other penalty. If the punishment imposed by the
disciplinary authority or the appellate authority
shocks the conscience of the High
Court/Tribunal, it would appropriately mould the
relief, either directing the disciplinary/appellate
authority to reconsider the penalty imposed, or to
shorten the litigation, it may itself, in exceptional
and rare cases, impose appropriate punishment
with cogent reasons in support thereof.”
[Emphasis laid]
17. In State Bank of Bikaner and Jaipur v. Nemi Chand
Nalwaya, a two Judge Bench of this Court held as below
:
“7. It is now well settled that the courts will not
act as an appellate court and reassess the
evidence led in the domestic enquiry, nor interfere
on the ground that another view is possible on the
material on record. If the enquiry has been fairly
and properly held and the findings are based on
evidence, the question of adequacy of the evidence
or the reliable nature of the evidence will not be
grounds for interfering with the findings in
departmental enquiries. Therefore, courts will not
interfere with findings of fact recorded in
departmental enquiries, except where such
findings are based on no evidence or where they
are clearly perverse. The test to find out perversity
is to see whether a tribunal acting reasonably
could have arrived at such conclusion or finding,
on the material on record. The courts will however
interfere with the findings in disciplinary matters,
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if principles of natural justice or statutory
regulations have been violated or if the order is
found to be arbitrary, capricious, mala fide or
based on extraneous considerations. (Vide B.C.
Chaturvedi v. Union of India, Union of India v. G.
Ganayutham, Bank of India v. Degala
Suryanarayana and High Court of Judicature at
Bombay -vs- Shashikant S. Patil). [Emphasis laid]
18. In Chairman & Managing Director, V.S.P. and
Others v. Goparaju Sri Prabhakara Hari Babu, a two
Judge Bench of this Court referred to several
precedents on the Doctrine of Proportionality of the
order of punishment passed by the Disciplinary
Authority and held that :
“21. Once it is found that all the procedural
requirements have been complied with, the courts
would not ordinarily interfere with the quantum
of punishment imposed upon a delinquent
employee. The superior courts only in some cases
may invoke the doctrine of proportionality. If the
decision of an employer is found to be within the
legal parameters, the jurisdiction would ordinarily
not be invoked when the misconduct stands
proved.”
19. Laying down the broad parameters within which the
High Court ought to exercise its powers under Article
226/227 of the Constitution of India and matters
relating to disciplinary proceedings, a two Judge Bench
of this Court in Union of India and Others v. P.
Gunasekaran held thus :
“12. Despite the well-settled position, it is
painfully disturbing to note that the High Court
has acted as an appellate authority in the
disciplinary proceedings, reappreciating even
the evidence before the enquiry officer. The
finding on Charge I was accepted by the
disciplinary authority and was also endorsed by
the Central Administrative Tribunal. In
disciplinary proceedings, the High Court is not
and cannot act as a second court of first appeal.
The High Court, in exercise of its powers under
Articles 226/227 of the Constitution of India,
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shall not venture into reappreciation of the
evidence. The High Court can only see whether:
(a) the enquiry is held by a competent
authority;
(b) the enquiry is held according to the
procedure prescribed in that behalf;
(c) there is violation of the principles of natural
justice in conducting the proceedings;
(d) the authorities have disabled themselves
from reaching a fair conclusion by some
considerations extraneous to the evidence and
merits of the case;
(e) the authorities have allowed themselves to
be influenced by irrelevant or extraneous
considerations;
(f) the conclusion, on the very face of it, is so
wholly arbitrary and capricious that no
reasonable person could ever have arrived at
such conclusion;
(g) the disciplinary authority had erroneously
failed to admit the admissible and material
evidence;
(h) the disciplinary authority had erroneously
admitted inadmissible evidence which
influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution
of India, the High Court shall not:
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the
enquiry, in case the same has been conducted
in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on
which findings can be based.
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(vi) correct the error of fact however grave it
may appear to be;
(vii) go into the proportionality of punishment
unless it shocks its conscience.”
XXXXXXXXXXX
22. To sum up the legal position, being fact finding
authorities, both the Disciplinary Authority and the
Appellate Authority are vested with the exclusive power
to examine the evidence forming part of the inquiry
report. On finding the evidence to be adequate and
reliable during the departmental inquiry, the
Disciplinary Authority has the discretion to impose
appropriate punishment on the delinquent employee
keeping in mind the gravity of the misconduct.
However, in exercise of powers of judicial review, the
High Court or for that matter, the Tribunal cannot
ordinarily reappreciate the evidence to arrive at its own
conclusion in respect of the penalty imposed unless
and until the punishment imposed is so
disproportionate to the offence that it would shock the
conscience of the High Court/Tribunal or is found to
be flawed for other reasons, as enumerated in P.
Gunasekaran (supra). If the punishment imposed on
the delinquent employee is such that shocks the
conscience of the High Court or the Tribunal, then the
Disciplinary/Appellate Authority may be called upon to
re-consider the penalty imposed. Only in exceptional
circumstances, which need to be mentioned, should
the High Court/Tribunal decide to impose appropriate
punishment by itself, on offering cogent reasons
therefore.
7. From the perusal of records, it is clear that the
respondents have misapplied Rules which is provided under
CCS(CCA) Rules, 1965 for conducting enquiry against the
applicant. Therefore, the enquiry conducted is in violation of
the rules.
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8. In the matter of Union of India & Ors vs. P.
Gunasekaran (supra), it has been laid down in Clause (b)
and (c) that the enquiry should be held according to the
procedure prescribed in that behalf and there should not be
violation of principles of natural justice in conducting the
proceedings.
Applying the aforesaid ratio of the Hon’ble Apex Court to
the facts of the present case, we are of the considered opinion
that the entire procedure holding for enquiry adopted by the
Disciplinary Authority is opposed to the relevant provisions
of the rules i.e., CCS(CCA) Rules, 1965 and hence, there is a
violation of principles of natural justice.
9. With regard to the other limb i.e. keeping promotion
of applicant in a sealed cover, it is noted that the DPC meeting
held on 21.06.2019 has considered promotion of applicant
against the vacancy of Assistant Engineer under ‘ST’ category
and kept the recommendation of the applicant in “Sealed
Cover” and did not recommend the case of the applicant on the
ground that an enquiry process has been initiated by the
Brahmaputra Board. Further on 21.06.2019, when the DPC
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meeting was held, there was no charge sheet pending or
instituted against the applicant at that time. As such, the DPC
has arbitrarily kept the proposal of the applicant in a sealed
cover which should not have been done in the light of the
observation made by the Hon’ble Supreme Court in the case of
Union of India Etc. Vs. K.V. Jankiraman and Ors. in Civil
Appeal Nos. 3018-21 of 1987 & Ors., wherein the Hon’ble Apex
Court had stated that:
“The conclusion no. 1 should be read to mean that the
promotion etc. cannot be withheld merely because some
disciplinary/criminal proceedings are pending against the
employee. To deny the said benefit, they must be at the
relevant time pending at the stage when charge-
memo/charge-sheet has already been issued to the
employee.”
From the above, we are of the considered opinion that the
applicant is entitled to get the promotion from the date when
his juniors were granted.
10. For the foregoing reasons and discussions, the instant
OA stands disposed of with the following direction to the
respondents:–
(a) Impugned Memorandum of Charge Sheet dated
19.09.2019(Annexure-A/3) as well as Penalty Order
dated 11.08.2022(Annexure-A/7) are quashed and set
aside being void-ab-initio.
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(b) To grant notional promotions to the applicant to the
post of Assistant Engineer(Civil/Mech.) with effect from
18.12.2019 and to the post of Assistant Executive
Engineer w.e.f. 17.10.2022 i.e. from the date when his
juniors were granted.
(c) Consequential benefits, if any, may also be granted
to the applicant.
(d) Respondents are at liberty to proceed with the fresh
inquiry strictly in accordance with the law.
11. Pending M.A.(s), if any, stand disposed of. No costs.
(MALLIKA ARYA) (RAJINDER SINGH DOGRA)
MEMBER (A) MEMBER (J)
/SK/
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