RICHARD CHAND vs DEPARTMENT OF WATER RESOURCES, RIVER DEVELOPMENT & GANGA REJUVENATION on 22 September 2026

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 @ SLP (C) No. 3524 of 2022 dated 23rd 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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