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2009 DIGILAW 3823 (ALL)

VINOD KUMAR SHARMA v. UNION OF INDIA

2009-12-18

ANIL KUMAR, D.P.SINGH

body2009
JUDGMENT By the Court.—Heard Sri Amit Bose, learned counsel for the petitioner, Sri R.K. Kidwai holding brief of Sri Sunil Sharma learned counsel for the opposite parties. 2. In brief, the facts as submitted by the learned counsel for the petitioner are that the petitioner was initially appointed on the post of Geologist (Junior) in the Geological Survey of India after selection by the Union Public Service Commission on 24.4.1981. On 5.11.1996, at police station Kotwali, District Haridwar a first information report was lodged by the Registrar, Roorkee University, Roorkee inter alia stating therein that on 19.7.1995 petitioner had applied for admission to the Ph.D. Course in the Roorkeee University, along with said application the petitioner had enclosed copy of his M.Sc. Final year mark-sheet indicating therein that the petitioner had obtained 1969 marks with 65% marks in the said course. However, on comparison of the said mark-sheet with the tabulation sheet available with the Roorkee University, it was found that the petitioner had in fact obtained 1869 marks with a percentage of 62.3% marks in the M.Sc. Final year examination as as such the petitioner had a forged mark-sheet. On the basis of aforesaid first information report a case crime No. 285/1996 under Sections 420, 467, 468, 471, IPC was registered against the petitioner at police station Kotwali, Roorkee, District Haridwar and in the said matter final report was submitted on 27.7.1997 which was subsequently accepted by an order dated 7.3.1998 passed by the Additional Chief Judicial Magistrate, Roorkee, District Haridwar. 3. It was further submitted by the learned counsel for the petitioner that a meeting of the departmental promotion committee was convened on 16.12.1997 to consider the officers serving on the post of Geologist (Junior) for promotion to the post of Geologist (Senior) in the Geological Survey of India. The case of the petitioner was also considered but recommendation of the Departmental Promotion Committee in respect to the petitioner’s case was kept in a sealed cover on the ground that the investigation in the aforesaid crime was pending against him. 4. The case of the petitioner was also considered but recommendation of the Departmental Promotion Committee in respect to the petitioner’s case was kept in a sealed cover on the ground that the investigation in the aforesaid crime was pending against him. 4. In the year 1999, another meeting for departmental promotion committee was convened for promotion to the post of Geologist (Senior) and in the said meeting the case of the petitioner was considered for promotion but again the recommendation of the departmental promotion committee was kept in sealed cover on the ground that a departmental enquiry was contemplated against the petitioner on the allegation levelled against him in the aforesaid criminal case registered against him. The action on the part of the respondent was patently illegal as no criminal case registered against the petitioner was pending and the department enquiry had not been initiated against him as no charge-sheet was issued against him. 5. In view of the above said fact, petitioner made representations to the Director General, Geological Survey of India, Kolkata stating requesting therein that sealed cover with regard to the recommendation of the departmental promotion committee in respect to the petitioner be opened and implemented but all efforts made by the petitioner was in vain as no heed was paid by the concerned respondent. 6. Another meeting of the departmental promotion committee was convened in February, 2001 for considering the officers holding the post of Geologist (Junior) for promotion to the post of Geologist (Senior) and in the said proceedings the name of the petitioner was considered but the recommendation was again kept in sealed cover. 7. In view of the aforesaid circumstances, the petitioner filed Original Application No. 151 of 2001, Vinod Kumar Sharma v. Union of India and others before the Central Administrative Tribunal, Lucknow Bench Lucknow and in the said Original Application a direction was issued by the Tribunal and in pursuance of the same the petitioner was promoted to the post of Geologist (Senior). 8. In the meantime, Memorandum of charge dated 23.3.2001 was issued to the petitioner by which four articles of charges were levelled against him, a copy of which has been annexed as Annexure-2 to the writ petition. 9. 8. In the meantime, Memorandum of charge dated 23.3.2001 was issued to the petitioner by which four articles of charges were levelled against him, a copy of which has been annexed as Annexure-2 to the writ petition. 9. The petitioner had challenged the aforesaid Memorandum of charge dated 23.3.2001 before the Central Administrative Tribunal, Lucknow Bench Lucknow by way of Original Application No. 196 of 2001, Vinod Kumar Sharma v. Union of India and others. Said Original Application was dismissed for want of prosecution on 19.4.2005 and thereafter the an application for restoration was also rejected on 6.7.2005. 10. The petitioner filed writ petition bearing No. 1365 (S/B) of 2005 before this Court thereby challenging the aforesaid two orders and the same is pending for adjudication. 11. As the enquiry proceedings which were initiated against the petitioner in respect of charges which were levelled against him by office memorandum had concluded and the enquiry officer submitted the enquiry report dated 12.8.2003 holding the petitioner guilty of all the four articles of charges. 12. Accordingly, the aforesaid enquiry report was supplied to the petitioner by show cause notice dated 9.9.2003 and the petitioner was required to submit his reply. The petitioner submitted his reply on 27.9.2003 stating there in that the findings recorded by the enquiry officer are perverse in nature and contrary to evidence on record and not amounting to any misconduct on the part of the petitioner. 13. Thereafter, the matter was referred to Union Public Services Commission by letter dated 5.5.2005 and 25.7.2005 issued by the Secretary, Ministry of Mines, Government of India, New Delhi for its opinion in the matter. In response to the aforesaid letters by letter dated 10.1.2006 issued by the Under Secretary,Union Public Service Commission, New Delhi had conveyed to the Geological Survey of India to the effect all the charges leveled against the petitioner are proved and recommended the punishment by two stages in the time scale of pay applicable to the petitioner for a period of five years. 14. 14. In pursuance of the above said fact, by means of order dated 24.3.2006 passed by the Director, Ministry of Mines, Government of India, New Delhi had passed the order punishment on the petitioner by imposing the penalty of reduction by two stages in the time-scale of pay for five years on Sri V.K. Sharma with further stipulation that during the period of reduction he will not earn increments of pay and that on expiry of this period the reduction will have the effect of postponing his future increments. 15. Aggrieved by the above said order dated 24.3.2006 the petitioner challenged the same by way of Original Application No. 202 of 2006, Vinod Kumar Sharma v. Union of India and others before the Central Administrative Tribunal, Lucknow Bench, Lucknow and after exchange of pleading and other documentary evidence on record the Tribunal by order dated 18.12.2008 dismissed the Original Application. Aggrieved by the said order passed by the Central Administrative Tribunal in Original Application No. 202 of 2006 and the impugned order of punishment 24.3.2006 passed by the Director, Ministry of Mines, Government of India New Delhi, the petitioner approached this Court by filing the present writ petition. 16. Learned counsel for the petitioner has argued that the Tribunal had erred in passing the order dated 18.12.2008 and the same is arbitrary in nature because before the Tribunal principally the petitioner had raised two grounds for challenging the impugned order of punishment passed against him which are as follows : (a) the impugned departmental proceedings instituted against the petitioner were without jurisdiction as the Geological Survey of India could proceed against the petitioner only in respect of an act or omission which would amount to an act of misconduct which was connected with this official duties but the Geological Survey of India could not conduct any departmental proceedings against the petitioner with regard to an act or mission which was not connected with the official duties of the petitioner and the said contentions of the petitioner had neither been considered by the disciplinary authority, the inquiry officer or even the Union Public Service Commission which in itself render the impugned proceedings against the petitioner to be illegal. (b) even assuming for arguments that there was a discrepancy in the marks obtained by the petitioner in the M.Sc. (b) even assuming for arguments that there was a discrepancy in the marks obtained by the petitioner in the M.Sc. Final examination as indicated by him in his application for admission to the Ph.D. Course and the original mark-sheet pertaining to the petitioner, it was only a calculation error and it was not an act of falsehood or forgery committed by the petitioner especially when minimum required for admission to the Ph.D course was 54% marks in the M.Sc. Final examination and thus the petitioner could not have derived any advantage by increasing the marks from 1869 to 1969 resulting in the percentage of marks increasing from 62.3% to 65%. Moreover, the petitioner could not succeed in getting admission to the Ph.D. Course and as such also it is apparent that it was all an error of calculation on the part of the petitioner which led to the number of marks being indicated wrongly by the petitioner and in support of his arguments he relies upon the following judgments reported in (1984) 1 SCCC1, M/s Glaxo Laboratories (I) Ltd. v. Presiding Officer, Labour Court, Meerut and others and (1999) 7 SCC 409 , Zunjarrao Bhikaji Nagarkar v. Union of India and others. However the Tribunal had not adjudicated and decided the above said points as such the order passed by the Tribunal is liable to be set aside. 17. After hearing the arguments of the learned counsel for the petitioner and going through the record of the present case and the judgment passed by the Tribunal, it transpires that while rejecting the petitioner Original Application by means of order dated 18.12.2008, the Tribunal in paras 5 and 6 of its judgment had given categorical findings of fact which are reproduced as under : “This Tribunal has limited scope of review. The punishment, according to the respondents, is very much in keeping with the gravity of misconduct of the applicant and the Tribunal cannot possibly interfere with the assessment of the disciplinary authority in this regard. The plea that the matter did not pertain to the field of duty does not hold much water as the disciplinary proceedings have been made as per the provisions of the CCS (CCA) Rules for violation of Rules relating to CCS Conduct Rules, 1964. The plea that the matter did not pertain to the field of duty does not hold much water as the disciplinary proceedings have been made as per the provisions of the CCS (CCA) Rules for violation of Rules relating to CCS Conduct Rules, 1964. Closure of investigation in the criminal case under Sections 420/467/468/477, IPC will not have any impact on the disciplinary proceedings which were initiated on specific allegations of violation of conduct rules. The officer is required to maintain absolute integrity in the matter of his conduct. Therefore, there was a valid reason for initiating the disciplinary proceedings and also for imposing the penalty. It is a fact that this Tribunal had limited scope of review. In this case no allegation of denial of opportunities or violation of natural justice has been made. The procedure as prescribed under rules have been meticulously gone through. Since the charges related to the conduct of the officer, the disciplinary authority had the right to initiate the disciplinary proceedings even though the criminal investigation had been closed. The citations of Supreme Court Civil Appeal No. 2911 of 1981 (1984(1) SCC1) and Civil Appeal No. 4294 of 1999 ( 1999(7) SCC 409 ) filed by the counsel for the applicant are not applicable to the facts of this case.” 18. In view of the above said fact and after going through the judgment passed by the Tribunal which is under challenged in the present case, we find that the Tribunal while passing the order dated 18.12.2008 in Original Application No. 202 of 2006 had considered each and every aspect of the present case and thereafter in this regard a categorical findings of fact were recorded by Tribunal in its order. 19. As the jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an appellate Court. The findings of fact reached by an inferior Court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. The findings of fact reached by an inferior Court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal. 20. In the case of Union of India v. H.C. Goel, AIR 1964 SC 364 the Hon’ble Supreme Court has held that : “It is, therefore, clear that the High Court was in error in reappreciating the evidence before the Tribunal and recording the conclusion that, that evidence did not establish the charges against the respondent.” 21. The Constitution Bench of Hon’ble Supreme Court in the case of State of Madras v. G. Sundaram, AIR 1965 SC 1103 has held that : “It is, therefore, clear that the High Court was not competent to consider the question whether the evidence before the Tribunal and the Government was insufficient or unreliable to establish the charge against the respondent. It could have considered only the fact whether there was any evidence at all which, if believed by the Tribunal, would establish the charge against the respondent. Adequacy of that evidence to sustain the charge is not a question before the High Court when exercising its jurisdiction under Article 226 of the Constitution.” 22. It could have considered only the fact whether there was any evidence at all which, if believed by the Tribunal, would establish the charge against the respondent. Adequacy of that evidence to sustain the charge is not a question before the High Court when exercising its jurisdiction under Article 226 of the Constitution.” 22. In the case of State of A.P. v. Chitra Venkata Rao, (1975) 2 SCC 557 the Hon’ble Apex Court has held as under : “The High Court is not a Court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The 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 not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent 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 High Court may interfere where the departmental authorities have held that proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which there findings 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 proceeding for a writ under Article 226.” 23. In the case of L.Chandra Kumar v. Union of India and others, 1997(3) SCC 261 , the Constitutional Bench of Apex Court had laid down the scope of the power of judicial review exercised by the High Court while deciding the writ petition against the judgment of Central Administrative Tribunal in para 93 as follows : “Their function in this respect is only supplementary and all such decisions of the Tribunal will be subject to security before the Division Bench of the respective High Courts.” 24. The Apex Court in the case of State of Uttar Pradesh and another v. Man Mohan Nath Sinha and another, (2009) 8 SCC 310 has held that : “The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision-making process. The Court does not sit in judgment on merits of the decision. It is not open to the High Court to reappreciate and reappraise the evidence led before the inquiry officer and examine the findings recorded by the inquiry officer as a Court of appeal and reach its own conclusions. In the instant case, the High Court fell into grave error in scanning the evidence as if it was a Court of appeal.” 25. In the instant case, the arguments advanced by the learned counsel for the petitioner that the Tribunal had failed to give any reasons in respect to the points raised by him as stated above is wholly misconceived and incorrect rather the same had been considered by the Tribunal while passing the order dated 18.12.2008 even the authorities which are cited on behalf of the petitioner in the present case were also considered by the Tribunal and it was held that the same are not applicable to the facts and circumstances of the case. 26. In view of the above said facts, the judgment passed by the Tribunal is based on findings of fact which are not perverse in nature so there is neither any illegality or any infirmity in the order passed by the Tribunal as such the submission made by the learned counsel for the petitioner has got no force and is rejected. 27. For the forgoing reasons, the present writ petition lacks no merit and is dismissed accordingly. 28. No order as to costs. ————