K. Madhava Reddy, Acting C.J.
1. The respondent herein was appointed as Grade I Assistant in the Food Corporation of India and on 14th May, 1975 was in charge of Block No. 8 Food Corporation of India, Santhnagar. A lorry bearing No. AAT 4883, which had been let in to transport rice from the godown and was loaded with the rice then stopped at the check - point was found to contain 51.600 kg of Hamsa rice in excess of the quantity permitted to be transported. Disciplinary proceeding were initiated against the writ petitioner, who was in charge of the godown. At the enquiry, the driver, the supervisor and some others initially cited were not examined. Only those present at the check-point were examined. However, the respondent was found guilty and his pay reduced to the minimum in the time scale by an order dated 22nd June, 1978. The respondent took the matter in appeal and questioned both the conviction and also the punishment imposed on him. By an order dated 16th May, 1979 the Zonal Manager (2nd appellant) upheld the punishment and dismissed the appeal. That order was called in question in the writ petition which was allowed by the order under appeal.
2. The learned single Judge was of the view that the order of the appellate authority was in flagrant violation of Regulation 72 of the Staff Regulations, 1971 in as much as it did not give any reasons. In that view of the matter, the learned single judge quashed the order of the appellate authority and remanded the matter to the Zonal Manager (appellate authority) for fresh consideration in the light of the observations made in that judgment. The Food Corporation of India has preferred this appeal inter-alia contending the since the Zonal Manager was confirming the order of the disciplinary authority and having regard to Regulation 72, he was not obliged to record reasons and the order cannot be quashed on that ground.
Mr. Suryanarayana Murty, learned standing counsel for the Food Corporation of India, contends that while the appellate authority is required to consider the several grounds raised by the appellant before him, in the absence of any specific provision in the regulations to record reasons, the order cannot be said to suffer from any infirmity merely because the appellate authority failed to record any reasons. He relied upon several rulings in which it was held that an affirming order of the appellate authority need not give reasons. The affirmance itself incorporate the reasons recorded by the original authority.
3. In M. P. Industries Ltd. v. Union of India 0044/1965 : 1SCR466 , it was held that if the order is one of affirmance, no reasons need be recorded elaborately.
4. In State of Madras v. Srinivas A.I.R. (1966) S.C. 1827, dealing with a case where the Government agreeing with the findings of the Enquiring tribunal is required to record reasons in support of the order imposing a penalty on the delinquent officer, the Supreme Court observed :
'It is to be remembered that the disciplinary proceedings against such a delinquent officer being with an enquiry conducted by an officer appointed in that behalf. That enquiry is followed by a report and the Public Service Commission is consulted where necessary. Having regard to the material which is thus made available to the Government and which is made available to the delinquent officer also, it is unreasonable to suggest that the State Government must record its reasons as to why it accepts the findings of the tribunal.'
In that context it pointed out the difference between a case where the State Government accepts the findings of the enquiring tribunal and where it differs from it and observed :
'It is conceivable that when the State Government does not accept the findings of the Tribunal which may be in favour of the delinquent officer, it should give reasons as to why it differs from the conclusions of the Tribunal, though even in such a case it is not necessary that the reasons should be detailed or elaborate.'
5. Dealing with the case of a court martial the Supreme Court in Som Datt v. Union of India : 1969CriLJ663 , held that there was no obligation to record reasons for confirming the proceedings of the Court Martial.
6. In the case of dismissal pursuant to a disciplinary proceeding where the disciplinary authority concurred with the enquiry officer's report, the Supreme Court held in Tara Chand v. Delhi Municipality [1977-I L.L.J. 331], that it need not record reasons. The decision cited earlier was referred to with approval. The Supreme Court, however, added that it cannot, be laid down as a general rule that an order is a non-speaking order simply because it is brief and not elaborate. Every case has to be judged in the light of its own facts and circumstances.
7. These decisions, in our view, lay down in general that an order of affirmance need not record reasons in detail. At the same time, it cannot be laid down as a general rule to be applied ignoring the particular provisions of the Regulation which govern the disposal of the appeals preferred thereunder. Regulation 72 of the Staff Regulations, which provides for consideration and disposal of the appeals, lays down as under :
'72. (1) In the case of an appeal against an order of suspension, the appellate authority shall consider whether in the light of the provisions of Regulation 66 and having regard to the circumstances of the case, the order of suspension is justified or not and confirm or revoke the order accordingly.
(2) In the case of an appeal against an order imposing any of the penalties specified in regulation 54 or enhancing any penalty imposed under the said regulations, the appellate authority shall consider -
(a) where the procedure laid down in these regulations has been complied with, and if not, whether such non-compliance has resulted in the violation of any provisions under these regulations or in the failure of justice;
(b) whether the findings of the disciplinary authority are warranted by the evidence on the record; and
(c) whether the penalty or the enhanced penalty imposed is adequate, inadequate or severe and pass orders -
i) confirming, enhancing, reducing, or setting aside the penalty; or
ii) remitting the case to the authority which imposed or enchanced the penalty or to any other authority with such direction as it may deem fit in the circumstances of the case;
(3) In an appeal against any order specified in regulation 68, the appellate authority shall consider all the circumstances of the case and make such order as it may deem just and equitable.'
The appellate authority is an authority which is required to consider the entire evidence on record and determine whether the findings of fact arrived at by the disciplinary authority are warranted by the evidence on record or not. It has also to consider whether the procedure laid down in the Regulations has been complied with and whether such non-compliance has resulted in the violation of any provisions under the regulations or in the failure of justice and further whether the penalty or enhanced penalty imposed is adequate, inadequate or sever. It has the power to confirm, enhance, reduce or set aside the penalty. It can even remit the matter to the original authority. The right to prefer an appeal is a substantive right vested in an employee. Whether the original authority committed any irregularity or illegality in the conduct of the proceedings and whether the findings of the disciplinary authority are war ranted by the evidence on record or not are matters which would come up under Regulation 72 for the first time before 2nd appellant (2nd respondent in the writ petition). The order of the 2nd appellant does not show that he had applied his mind to any of these factors. Although the charged officer had questioned not merely the penalty imposed upon him but also the very findings as to his guilt, on the charges framed against him and it was incumbent upon the appellate authority to specifically consider how far the evidence on record supported the findings as to the guilt, there is absolutely no reference, not even a passing reference, to the evidence supporting the finding as to the guilt of the charged officer. Even as regards the penalty, what all was stated by the appellate authority is that there are no extenuating circumstances to interfere with the said penalty.
8. Mr. Suryanarayana Murthy placed very strong reliance upon the judgment of the learned single judge of the Allahabad High Court in Ram Naresh v. State [1968-II L.L.J. 586], and contended that where the rules do not prescribe that the order should be a speaking order and the appellate authority should record reasons for it, no rule of natural justice requires the reasons to be recorded and no order can be set aside on that ground. The mere failure to record reasons does not lead to the conclusion that the appellate authority has not applied its mind to the grounds raised in the appeal. The learned single Judge of the Allahabad High Court observed that the absence of reasons in the decision taken by the appellate authority does not vitiate the findings of the appellate authority when there has been no violation of any rule. Having regard to the specific language of Regulation 72(2) of the Staff Regulations, we are unable to concur with this view. Further, while the charged officer has questioned the finding with regard to his guilt, the order of the appellate authority is silent on that aspect. Even the learned single Judge of the Allahabad High Court did not go to the extent of holding that if the order of the appellate authority does not refer to such an issue specifically raised in the appeal, the appellate authority should be deemed to have affirmed the order of the original authority. In the instant case, the order of the appellate authority is silent on the question of the guilt of the delinquent officer. In fact, the order does not show that the appellate authority has considered that aspect at all. It would be too much to infer that since the appellate authority has confirmed the penalty, it should also be deemed to have confirmed the finding as to the guilt, of the delinquent officer.
9. We are clearly of the view that having regard to the language of Regulation 72(2), when an appeal is preferred and that too a first appeal, against the order of the disciplinary authority, it is incumbent upon the appellate authority to consider the several factors mentioned in clauses (a), (b) and (c) of Regulation 72(2) of the Staff Regulations and record a finding thereon. The order affects the rights of the charged officer. When an appeal is provided both on question of fact and law, the order must ex facie disclose that the appellate authority has applied its mind to these several aspects.
10. That apart, any order made by the appellate authority is subject to review under Regulation 74 of the Staff Regulations and the Corporation has the full authority and jurisdiction to confirm, modify or set aside the order holding the respondent not guilty of the charge and even after finding him guilty, it may confirm, reduce, enhance or modify the penalty. That order is subject to a further review by a superior authority. That being the position, it is all the more necessary that the order of the appellate authority made under Regulation 72(2) of the Staff Regulations should be a speaking order.
11. Mr. Suryanarayana Murty, learned standing counsel for the Food Corporation of India, however, contended that inasmuch as the respondent-charged officer has a right to move the Corporation by way of review, this Court in exercise of its extraordinary, jurisdiction under Art. 226 of the Constitution should refrain from interfering with the order of the appellate authority. A mere provision for review is not a bar to the exercise of jurisdiction. As discussed above, when the order of the Appellate authority itself is not a speaking order, the Corporation would be obliged to remand the matter to the appellate authority. There is no reason why we should deprive the charged officer to the remedy by way of review when he is entitled to prefer an appeal and the appellate authority is obliged to consider the several factors mentioned in Regulation 72(2) but has not considered them. In any event, the learned single Judge having exercised the discretion in favour of the writ petitioner, we do not think it would be proper for us to set aside the order, even after finding that the appellate authority has disposed of the appeal in violation of the provisions of Regulation 72(2) of the Staff Regulations.
12. In view of the above discussion, the order under appeal does not call for interference. The appellate authority should deal with the several objections raised by the charged officer and dispose of the appeal in the light of the observations made in this Judgment.
This writ appeal therefore fails and is accordingly dismissed. No costs. Advocate's fee Rs. 150/-.
13. Appeal Dismissed.