Kalyan Jyoti Sengupta & Prasenjit Mandal, JJ.

1. By this application, the applicant has challenged the judgment and order of the learned Tribunal dated 20th May, 2005, whereby the applicants challenge against the order of punishment of reduction in rank has failed.

2. The applicant, originally at the time of issuance of charge sheet, was holding the post of Sub-Divisional Inspector (P). He was charge sheeted on or about 15th February, 2002 on the ground of misconduct that while taking selection process for the purpose of Extra Departmental Delivery Agent, now re-designated as G.D.S. Mail Deliverer, he has selected certain candidates ignoring the claim of one Sukumar Patra who had obtained higher percentage of marks in Madhyamik Pariksha and thereby violated D.G. Posts Commn. No. 17-366/91-ED & Trg dated 12th March, 1993 and 17-108/94-ED & Trg. dated 14th December, 1994 and also 19-11/97-ED & Trg dated 27th November, 1997. By this selection he has shown lack of integrity and also acted in a manner unbecoming of a Government servant, thereby contravening Rules 3(1)(iii) of CCS (Conduct) Rules, 1964.

3. The second charge is that during the period from 3rd June, 1996 to 15th June, 2000, the applicant has failed to comply with the directions of the then SSPOs, Howrah as recorded in Para 13(i) of I.R. dated 4th December, 1996 in his office for 1996 to ensure minimum fixed percentage of representation of Reserved Community in the matter of E.D. recruitment as per D.G. Posts No. 43-117/80-Pen dated 8th October, 1980 and No. 19-11/97-ED & Trg dated 27th November, 1997.

4. The third charge of misconduct is that during the period from 3rd June, 1996 to 15th June, 2000 the applicant selected and appointed one Shri Ashok Kr. Sarkar as EDDA (now redesignated as GDS Mail Deliverer) ignoring the claim of one Shri Suprabhat Pandit who secured highest marks as per merit list by violating D.G. Posts instruction contained in Commn. No. 17-366/91-ED & Trg dated 12th March, 1993 and that of No. 19-11/97-ED & Trg dated 27th November, 1997.

5. The said charges were replied to and point was taken that there cannot be any misconduct as there has been no violation of the departmental guidelines in selecting a candidate who has secured highest marks in the Madhyamik Examination. It is also the defence that the persons who were selected and/or chosen by the applicant, were ultimately given appointment by the department and they are still in service. Therefore, such selection cannot be said to be an illegal one; if it were, it would not have been accepted and there is no other charge.

6. Enquiry Officer was appointed and he found the applicant guilty. The disciplinary authority having accepted the report of the Enquiry Officer imposed punishment of removal from services on him. Appellate authority, on appeal being preferred, also followed suit. However, the revising authority, while examining the aspect, set aside the order of removal and reduced the punishment in the form of lowering of the applicant in the lowest rank and scale.

7. Challenging the entire thing, the applicant had approached the learned Tribunal. The learned Tribunal has noted the fact that the alleged irregular recruitees have been in services and they were not terminated, but by this appointment, the applicant cannot take advantage, as one wrong thing cannot be a precedent for another wrong. The learned Tribunal is also of the view that when all the questions have been gone into by fact finding and with evidence, the order of the revising authority should not be interfered with. The learned Tribunal noted its power and scope of judicial review and indeed the learned Tribunal in its view, was very careful to remain within its ambit and scope or power.

8. Challenging the aforesaid decision of the learned Tribunal, Mr. Moitra submits that if the charges are read properly together with a document, copy of which has been placed before us, it will appear that there has been no misconduct. There was no departmental guideline or stipulation that a candidate, who has secured highest marks in Madhyamik examination, must be selected and no other person should be selected. Selection of a candidate, who has secured lesser marks than other persons, cannot per se constitute misconduct. Indeed there has been no violation at all as a selector.

9. We have gone through the charge sheet as well as the reply of the applicant, report of the enquiry officer and orders of all the authorities. We are of the view that all these authorities have not really applied their mind to decide the very fundamental thing as to whether the allegations contained in the charge sheet, taking note of the documents and circulars mentioned therein, constitute any misconduct or not. One of such document mentioned in the charge sheet has been placed before us and we do not find that there is any reference that a candidate who has secured highest marks should be selected and the other candidates should be ignored, meaning thereby ignoring the candidate securing higher marks, itself is misconduct. Unless there is a specific direction and stipulation in this respect, it cannot be said to be a misconduct. However, we find that there are other circulars, referred to and mentioned in the charge sheet. Neither those are placed before us nor do we find that the learned Tribunal or any of the authorities, discussed about the same.

10. We have gone through the order of the revising authority who has referred to new thing and new fact in order to arrive at a conclusion regarding commission of a misconduct and those allegations are not part of the charge sheet. We are, therefore, of the view that the order of the learned Tribunal is not sustainable, as those things were not examined. Accordingly, the impugned judgment and order of the learned Tribunal is set aside.

11. We are also of the view that the order of the revising authority has not been passed on correct reading of the charge sheet or the records, with particular reference to the departmental circulars mentioned in the charge sheet. Accordingly, we keep the order of the revising authority in abeyance and we direct the revising authority to re-consider this matter, taking note of the following points:

(a) Whether the allegations contained in the charge sheet with reference to the documents and circulars mentioned therein, do constitute any misconduct or not

(b) Whether the candidates selected by the applicant have been ultimately recruited and they are still in service or not

(c) Whether appointment of the candidates, selected by the applicant, constitute misconduct on the part of the applicant or not

12. The revising authority will not be swayed by any observation or recording made by any of the disciplinary authority or the enquiry officer, who according to us, did not make any endeavour to enter into the aforesaid aspect. This exercise shall be completed within twelve weeks from the date of communication of this order. The revising authority will pass a speaking order, upon giving a chance of hearing to the applicant by supplying documents, if any, which have been referred to and mentioned in the charge sheet only. It is made clear that no new allegation or charge shall be leveled only the charge sheet issued earlier, shall be taken into consideration. Upon reconsideration if it is found that the applicants case is acceptable then obviously the order of the revising authority will stand set aside and on reconsideration if it is found that this cannot be upset, then the order of the revising authority will revive. The petitioners pecuniary claim will abide by the decision of the revising authority, which shall be taken in terms of this order.

13. This application is, thus, disposed of setting aside the judgment and order of the learned Tribunal. There will be no order as to costs.

Application Disposed of.