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2010 DIGILAW 346 (MP)

Union of India v. Dinesh Singh Bhadoria

2010-03-23

A.K.SHRIVASTAVA, S.K.GANGELE

body2010
Judgment Shrivastava, J. ( 1. ) The judgment passed in this appeal shall also govern the disposal of connected Writ Appeal No. 91/2009 (Union of India and others v/s. S.P. Singh) since both the appeals have arisen from the common impugned order passed by the learned Writ Court in W.P. No. 609/2005 (S)decided on 2/12/2008. ( 2. ) This appeal has been filed by Union of India and its functionaries under section 2(1) of Madhya Pradesh Uchcha Nyayalaya (Khand Nyaypeeth Ko Appeal) Adhiniyam, 2005 against the order dated 2.12.2008 passed by the learned Writ Court allowing the writ petition of writ petitioner/respondent and by setting aside the order of punishment and remanding the matter back to the disciplinary authority of the department to impose any other punishment upon the writ petitioner/respondent except compulsory retirement, dismissal or removal from service. ( 3. ) In brief the case of writ petitioner/respondent is that, he was charge- sheeted on 25th January, 2004 for assaulting one B.S. Rana (CHM) who was also an employee of the Central Industrial Security Force, an Armed Force of the Union while he was eating his dinner at 21:20 hours on 3/1/2004. The other charges were also levelled against the writ petitioner that he spoke in a high tone and in indiscipline manner with the senior officer B.S. Rana. ( 4. ) A reply was submitted by the writ petitioner and it was stated by him that indeed B.S. Rana along with one Amar Singh has assaulted the petitioner and also one Cook S.P. Singh, however, nothing was done against them and the writ petitioner has been victimized in the matter. The writ petitioner has enclosed the statements recorded during the departmental enquiry and has stated that it was only B.S. Rana and Amar Singh who have given evidence against him. The writ petitioner has categorically stated that initially Amar Singh has stated that one blow was given to him by the petitioner, however, in his cross-examination he has stated that he was only pushed by the writ petitioner. Thus, according to the writ petitioner a concocted story has been built up and he has been victimized without there being any evidence except the statements given by B.S. Rana and Amar Singh, who have assaulted the petitioner. ( 5. Thus, according to the writ petitioner a concocted story has been built up and he has been victimized without there being any evidence except the statements given by B.S. Rana and Amar Singh, who have assaulted the petitioner. ( 5. ) A return was filed by the appellants, in the learned Writ Court and it has been pleaded that the departmental enquiry was set up against the writ petitioner under the provisions of CISF Rules, 2001 read with CISFAct, 1968 and the present petition is premature as there is a remedy of revision under section 9 of the CISFAct, 1968. The appellants have also stated in the return that a preliminary enquiry was held and thereafter a full fledge departmental enquiry was conducted in which the petitioner was granted full opportunity to defend his case and thereafter after following the prescribed procedure the punishment has been awarded. The appellants have stated that B.S. Rana and Amar Singh who were assaulted, they have deposed against the writ petitioner in the departmental enquiry. According to the appellants, B.S. Rana received injuries in his left eye and on his body, but as the injury was not that much serious, he was not medically examined. The appellants have also pleaded that scuffle of such kind with a senior amounts to in-disciplinary activities, and therefore, the disciplinary authority has rightly held the petitioner guilty and order of removal of service has rightly been passed. It has also been put forth that the departmental appeal which was submitted by the writ petitioner was also dismissed by the said authority. ( 6. ) The learned Writ Court by the impugned order has held that since it is borne out from the record that indeed scuffle took place between the soldiers, and the B.S. Rana has also assaulted the petitioner and because no enquiry was conducted against B.S. Rana and only the petitioner who was working on the post of Cook was subjected to a departmental enquiry, he cannot be removed from the service and hence by allowing the petition, it was directed to the disciplinary authority to pass some other order except order of compulsory retirement, dismissal or removal from service. ( 7. ) In this manner, this appeal has been preferred by appellants/Union of India and its functionarites assailing the impugned order dated 2.12.2008 passed by the learned Writ Court. ( 8. ( 7. ) In this manner, this appeal has been preferred by appellants/Union of India and its functionarites assailing the impugned order dated 2.12.2008 passed by the learned Writ Court. ( 8. ) The contention of Shri Alok Katare, learned counsel for appellants is that in the entire order nowhere it has been held by the learned Writ Court that the punishment so inflicted is shockingly disproportionate. According to the learned counsel before interfering in the quantum of punishment particularly by passing the direction that lesser punishment should be awarded, a finding should have been recorded that the punishment of removal from service is shockingly disproportionate, and, therefore, in absence of such finding the impugned order cannot be sustained. It has also been put forth by learned counsel that finding arrived at by the learned Writ Court holding that the writ petitioner was also beaten by B.S. Rana appears to be perverse because there is no direct evidence available on record, on the contrary whatever has been gathered is on the basis of hearsay evidence. By placing reliance on the decision of Supreme Court Kendriya Vidyalaya Sangathan and another v. Sathir Singh Mahla, (2008) 4 SCC 445 it has been contended by learned counsel that because in complete derogation to the discipline the delinquent by taking law in his own hands has beaten B. S. Rana who was admittedly a senior officer to the delinquent, therefore, the only appropriate punishment which is to be awarded is to remove the delinquent from the service. Learned counsel has also placed reliance on two other decisions of the Supreme Court Director General, RPF and others v. Ch. Sai. Babu (2003) 3 SCC 331 and Mithilesh Singh v. Union of India and others, (2003) 3 SCC 309 on the same point. Hence, it has been prayed by learned counsel that the punishment which was awarded by the department was not shockingly disproportionate, therefore, injudicial review while exercising jurisdiction under Article 226 of the Constitution of India the learned Writ Court should not have interfered in the quantum of punishment. ( 9. Hence, it has been prayed by learned counsel that the punishment which was awarded by the department was not shockingly disproportionate, therefore, injudicial review while exercising jurisdiction under Article 226 of the Constitution of India the learned Writ Court should not have interfered in the quantum of punishment. ( 9. ) Combating the aforesaid submissions of learned counsel for the appellants,it has been contended by Shri U.K. Bohare, learned counsel for the respondent that there is cogent material in order to hold that indeed; the writ petitioner was assaulted by B.S. Rana and this fact is apparent on record and because no departmental enquiry was set up against B.S. Rana, therefore, the learned Writ Court did not commit any error in remanding the case back to the department for passing appropriate punishment except compulsory retirement, dismissal or removal from service. Learned counsel submits that cogent reasons have been assigned by the learned Writ Court allowing the writ petition and this appeal sans substance and the same is liable to be dismissed. ( 10. ) Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed. ( 11. ) On going through the impugned order dated 2/12/2008, we do not find that there is any finding of the learned Writ Court that the punishment of removal awarded by the department is shockingly disproportionate looking to the misconduct which has been found to be proved in the departmental enquiry. Even for the sake of arguments if it is held that there is some whisper that B.S. Rana assaulted the writ petitioner, since the said evidence is based on hearsay evidence, therefore, in comparison of the direct evidence of Amar Singh and R. R Singh that the present writ petitioner assaulted B.S. Rana would prevail. Apart from this, according to us, appreciation of evidence is not permissible within the purview of judicial review as envisaged under Article 226 of the Constitution of India. ( 12. ) Vehemently it has been contended by Shri Bohare, learned counsel for respondent/writ petitioner that it has come in the statements of R.S. Tomar (PW 8), Agni Gurmukh Singh (PW 7), S.L. Uieke (PW 6), Rajesh Singh (PW 9), LP. Singh (DW 1), S.N. Goswami (DW 2), R.L. Bagana (DW 3), RPS Tomar (DW 4) and M.K. Singh (DW 6) that B.S. Rana has also assaulted the writ petitioner. Singh (DW 1), S.N. Goswami (DW 2), R.L. Bagana (DW 3), RPS Tomar (DW 4) and M.K. Singh (DW 6) that B.S. Rana has also assaulted the writ petitioner. But, whatever the evidence these witnesses have deposed it is only hearsay evidence and they have not seen the incident. The statement of delinquent D.S. Bhadoria has not been filed in order to demonstrate that indeed he was also beaten by B.S. Rana, and therefore, according to us, in place of direct evidence, no preference can be given on indirect evidence which is hearsay. Apart from this, this amounts to re-appreciation of the evidence which is not at all permissible while exercising the writ jurisdiction under Article 226 of the Constitution of India ( 13. ) The disciplinary authority as well as the appellate authority after putting emphasis on the entire gamut of the matter came to hold that indeed the delinquent writ petitioner has assaulted B.S. Rana. Admittedly B.S.Rana, at the relevant point of time, was serving on the post of Head Constable while the delinquent was serving on the post of Constable/Cook and was a junior employee. According to us, if the member of the paramilitary force, in complete derogation to the discipline would assault the senior officer, his action cannot be protected in any manner. The decision placed reliance by learned counse in Satbir Singh Mahla (supra) is squarely applicable in the present factual scenario. Other two decisions Ch. Sai Babu (supra) and Mithlesh Singh (supra) which are placed reliance by the learned counsel for appellants are also applicable in the facts and circumstances of the case. ( 14. ) In appeal also we have given our bestowed and anxious consideration to the reasoning assigned by the learned disciplinary authority as well as by the reasoning assigned by the learned appellate authority and we find that looking to the material available on record the punishment of removal from the services cannot be said to be shockingly disproportionate. In this veiw of the matter, according to us, in absence of any finding of learned Writ Court that the punishment was shockingly disproportionate, according to us, within the purview of judicial review under Article 226 of the Constitution of India it will be beyond the scope of this Court to interfere in the quantum of punishment. In this veiw of the matter, according to us, in absence of any finding of learned Writ Court that the punishment was shockingly disproportionate, according to us, within the purview of judicial review under Article 226 of the Constitution of India it will be beyond the scope of this Court to interfere in the quantum of punishment. Hence, we are unable to uphold the order impugned dated 2.12.2008 passed by learned Writ Court. ( 15. ) Ex.consequenti this appeal and connected writ appeal No. 91/2009 are allowed and the impugned order dated 2/12/2008 passed by the learned Writ Court is hereby set aside and the order passed by the disciplinary authority Annexure P/l 1 dated 14/6/2004 and the order passed by the appellate authority Annexure P/l dated 5th October, 2004 are hereby restored. Looking to the facts and circumstances of the case, the parties are directed to bear their own costs.