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Gauhati High Court · body

1996 DIGILAW 161 (GAU)

Md. Abdur Rahman v. Assam Agro Industries Development Corporation Ltd.

1996-07-19

J.N.SARMA

body1996
Application has been filed challenging the legality and validity of the order dated 16.9.93 Annexure 6 to the writ application by which the petitioner was removed from service of the Corporation. An appeal was filed and that was rejected vide order dated 28.12.93 Annexure 8 (i) to the writ application. 2. I have heard Sri S Ali, learned Advocate for the petitioner and Mr. BM Sharma, learned Advocate for the respondents. 3. An affidavit-in-opposition has been filed and the record of enquiry has also been produced before me. The petitioner herein was asked to show cause on 13th October, 1990. There were as many as four charges as against him and graveman of all the charges are that he defalcated huge amount of Corporation. Along with the charges statement of allegations were furnished. Thereafter, on 13th October, 1990, the petitioner showed cause. One Sri PK Gogoi was appointed as the Enquiry Officer and the petitioner was found guilty of the charges save and except certain part of the charges. Thereafter, on 20.5.93 a second show cause was issued along with the copy of the enquiry report. The enquiry authority found that the petitioner is guilty of for mis-appropriating a sum of Rs,3,40,341.88. The petitioner showed cause on 31.8.93. Thereafter, on 16.10.93 vide Annexure 6, the petitioner was dismissed from service. 4. An appeal was filed by the petitioner and that was rejected on 28.12.93. Hence, this writ application. 5. The following are the submissions : (i) That the order of dismissal was based on findings of the enquiry report without any application of mind by the disciplinary authority. (ii) That the petitioner was made a scope goat to save the Branch Manager from the disciplinary proceedings. (iii) A single witness was examined to substantiate the allegations brought against the petitioner to prove the charges. (iv) The petitioner made a statement and that was not recorded by the disciplinary authority. (v) The petitioner carried the verbal order of the Branch Manager but that Branch Manager was not examined as a witness in the departmental proceeding to enable the petitioner to cross examine the Branch Manager. 6. (iv) The petitioner made a statement and that was not recorded by the disciplinary authority. (v) The petitioner carried the verbal order of the Branch Manager but that Branch Manager was not examined as a witness in the departmental proceeding to enable the petitioner to cross examine the Branch Manager. 6. Regarding the point that the disciplinary authority did not apply his mind to the findings of the Enquiry Officer, can be disposed of an a short ground inasmuch/as from the record it appears that on 8.9.92, the disciplinary authority looked to the materials and passed the following order quoted below (he also considered a large number of documents numbering 50 to find out the allegations brought as against him). That order is quoted below : xxxx  xxxxx xxxx 7. In the enquiry one person was examined on behalf of the department i.e. Ahimuddin Ahmed and large number of documents were produced at the time of hearing. The petitioner also examined himself and he also submitted a written argument and all these things were considered by the Enquiry Officer to arrive at the findings. I have looked to the records of the enquiry proceeding and I find that the procedural safeguard available to the petitioner was not violated. 8. It is settled law that in a domestic enquiry the technical strict rules of evidence in Indian Evidence Act shall not apply. All materials which are available with prudence may be used. There is even no bar to use materials once it is reasonable, relevant and credible. It is true that the department/authorities must be careful in evaluating such materials and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. It may be necessary for the disciplinary authority to record its provisional conclusions in the notice calling upon the delinquent officer to show cause why the proposed punishment be not imposed upon him. Further, if it differs from the findings arrived at by the Enquiry Officer with regard to the charge, it is not obligatory to do so by giving reason but hi case the disciplinary authority agrees with the findings of the Enquiry Officer, it is not necessary to write an elaborate order. 9. In the instant case as will be evident from the order quoted above, the Disciplinary Authority applied its mind to the matter and passed a reasoned order. 9. In the instant case as will be evident from the order quoted above, the Disciplinary Authority applied its mind to the matter and passed a reasoned order. It cannot be laid down as a general rule that an order is 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. 10. Whether the delinquent had a reasonable opportunity to defend himself is a question of fact depending upon the circumstances of each case and no hard and fast rule can be laid down in that behalf. In the instant case, there was no request from the side of the petitioner to examine the Branch Manager. The department/authority is not bound to examine the witnesses of the choice of the petitioner. The option is with the department either to examine a particular witness or not to examine a particular witness. If the officer wants to examine a particular witness he must approach the Enquiry Authority with a demand/request for the examination of that particular witness and if that is refused without reasonable ground, the petitioner may make grievance of it, if otherwise the examination of that witness is relevant for the purpose of case in hand. That is not the case here. As indicated above, there was no request for the examination of the Branch Manager. In view of all these, it cannot be held that reasonable opportunity of defending himself as contemplated in Article 311 of the Constitution was denied to the petitioner. 11. The writ Court is not the appellate forum where the correctness of an order of the authority could be challenged. The writ Court has no jurisdiction to substitute its own views. The entire power, jurisdiction and discretion in that regard is vested in the disciplinary authority. The only question which could be considered by the Court is whether the authority has paid attention or taken into consideration events or matters wholly extraneous, the purpose for which the power is vested or where the conduct of the proceeding was improper or against the principle of law- What the Court can look into is whether the order passed is supported by any evidence at all. The petitioner must be able to satisfy the Court that the ultimate conclusion in the proceeding which is the basis of the dismissal order is based on no evidence. Whether or not the evidence was satisfactory and sufficient for satisfying its conclusion would not be a matter for consideration in a writ petition. The writ Court cannot appreciate the evidence and that is not reasonable and legitimate. The only thing what the writ Court can look to it is the decision making process. The writ Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf and whether the rules of natural justice are violated or not. Where there is some evidence which the authority entrusted with the duty is held and the evidence is accepted and such evidence may reasonably support that the officer is guilty of the charge. It is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The disciplinary authority, if otherwise properly held, is the sole judge of facts and there is some legal evidence of which the finding can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a writ proceeding. It is not for the High Court to consider whether the evidence was insufficient or unreasonable to establish the charge against the person. Adequacy of evidence to sustain the charge cannot be a question before the High Court while exercising jurisdiction under Article 226 of the Constitution. What is a fair practice must depend upon the facts and circumstances of each case but where fair opportunities have been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in the Court. 12. This being the position of law, there is no merit in this writ application and the same is dismissed. I leave the parties to bear their own costs.