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2011 DIGILAW 1857 (RAJ)

Bhawani Shankar Sharma v. Regional Research Institute

2011-08-30

ARUN MISHRA, BELA M.TRIVEDI

body2011
Hon'ble Ms. TRIVEDI, J.—The Appellant (Original petitioner) by way of present intra Court Appeal has challenged the legality of the judgment and order dated 29.8.1997 passed by the learned Single Judge in SBCWP No. 5126/1989, whereby the learned Single Judge had confirmed the order dated 26.9.1989 passed by the Appellate Authority (Central Council for Research in Ayurveda and Sidha), regarding the termination of services of the appellant. 2. The facts in nutshell giving rise to the present appeal are that the appellant was working as LDC in the Account Section of the respondent institute. An FIR came to be registered against the appellant for offences under Sections 420,381,4 67,368 and 471 IPC in which it was alleged inter-alia that the appellant, stealing a Cheque No. 011395 from the cheque book, had forged the signatures of the officials and had encashed the said cheque from the State Bank of India, Sanganeri Gate, Jaipur on 18.10.1976. The appellant, thereafter, was placed under suspension on 27.10.1976, however the said suspension was subsequently revoked on 1.4.1985, on certain conditions, one of them being that the Disciplinary Authority shall take the disciplinary action under the Rules against the appellant for his mis-conduct, as may be deemed fit independently of the case already in progress and award such punishment as may be considered necessary. Thereafter, the Assistant Director Incharge, RRI, Jaipur served a memorandum along with the charge-sheet to the appellant on 11.2.1988 proposing to hold an inquiry under the provisions contained in the Bye-law 46 of the Bye-laws, governing the service conditions of the employees of the RRI read with Rule 14 of the CCS (CCA) Rules. The appellant submitted the written reply denying the allegations made against him and also raised certain contentions. The departmental proceedings thereafter were conducted in which the department examined 5 witnesses and produced number of documents in support of the allegations made against the appellant. The said witnesses were also cross-examined by the appellant. 3. The Inquiry Officer considered the evidence on record and after giving full opportunity of hearing to the appellant submitted the report, holding all the charges levelled against the appellant as proved. The Disciplinary Authority ' on the basis of the said report of Inquiry Officer, imposed the penalty terminating the services of the appellant with immediate effect, vide order dated 31.3.1989. The Disciplinary Authority ' on the basis of the said report of Inquiry Officer, imposed the penalty terminating the services of the appellant with immediate effect, vide order dated 31.3.1989. Being aggrieved by the said order of the Disciplinary Authority, the appellant had preferred an appeal before the Appellate Authority i.e. The Director, CCRAS, who vide order dated 26.9.1989 dismissed the said appeal and confirmed the penalty of termination of services imposed on the appellant. The aggrieved appellant approached the High Court by filing the writ petition No. 5126/1989 challenging the said order passed by the Appellate Authority. During the pendency of the said writ petition, it appears that the appellant came to be acquitted by the concerned Criminal Court at Jaipur, from the charges levelled against him vide order dated 19.9.1996 against which, the State had preferred an appeal and the respondents had filed the revision application ''before the High Court. The learned Single Judge, however, vide the order dated 29.8.1997 dismissed the said writ petition. The appellant therefore, preferred the present intra Court appeal challenging the said order passed by the learned Single Judge. 4. The learned Advocate Mr. Ashvini Jaiman for the appellant raising various contentions, vehemently submitted that the order of the termination of services of the appellant passed by the Disciplinary Authority relying upon the report of Inquiry Officer, was bad in the eye of law, which the Appellate Authority as well as the learned Single Judge had failed to appreciate." The learned counsel submitted that the inquiry itself, having been initiated after such long time, was vitiated, in view of the Judgment of Apex Court in Case of M.V. Bijlani vs. Union of India and Others (2006)5 SCC 88 . Placing reliance on the decision of Hon'ble Supreme Court reported in State of Punjab and Others vs. Prem Sarup (2008) 12 SCC 522 , in Case of State Bank of Hyderabad and Another vs. P. Kata Rao (2008) 15 SCC 657 , in Case of G.M. Tak vs. State of Gujarat and Others (2006) 5 SCC 446 Mr. Placing reliance on the decision of Hon'ble Supreme Court reported in State of Punjab and Others vs. Prem Sarup (2008) 12 SCC 522 , in Case of State Bank of Hyderabad and Another vs. P. Kata Rao (2008) 15 SCC 657 , in Case of G.M. Tak vs. State of Gujarat and Others (2006) 5 SCC 446 Mr. Jaiman submitted that the criminal case having already been filed by the department, the departmental inquiry proceedings on the same facts and charges could not have been initiated by the department, and that even otherwise the Criminal Court having acquitted the appellant from all the charges levelled against him, the departmental proceedings against the appellant were also required to be dropped- Reliance was also placed on the Judgment of the Apex Court in the Case of State of Andhra Pradesh vs. S.N. Nizamuddin Ali Khan AIR 1976 SC 1964 and in Case of Moni Shankar vs. Union of India and Another (2008) 3 SCC 484 to submit that the departmental proceedings being quashi judicial proceedings, the principles of natural justice were required to be followed, which in the instant case were violated by the Inquiry Officer by not affording the appellant an opportunity to cross-examine the hand writing expert, whose opinion was relied upon by him. Mr. Jaiman, also relied upon the recent judgment of the Hon'ble Supreme Court in Case of Life Insurance Corporation of India and Another vs. Ram Pal Singh Bisen (2010) 4 SCC 491 to submit that mere filing or exhibiting a document could not amount to proof of its contents. Accordingly to him, since the contents of the opinion of hand writing expert having not been proved by the department, the Inquiry Officer could not have relied upon such document. Lastly, the learned counsel for the appellant has submitted that the findings arrived at by the Inquiry Officer were based on no evidence, ... and that the Disciplinary Authority had also not passed speaking order while imposing the penalty of termination of service relying upon the said findings of the Inquiry Officer. He also submitted that even otherwise the punishment of termination of services of the appellant was very harsh and disproportionate to the charges levelled against the appellant. 5. Per contra, learned Sr. counsel Mr. J.P. Goyal appearing with Ms. He also submitted that even otherwise the punishment of termination of services of the appellant was very harsh and disproportionate to the charges levelled against the appellant. 5. Per contra, learned Sr. counsel Mr. J.P. Goyal appearing with Ms. Manisha Surana for the respondents, has submitted that there being concurrent findings of facts recorded by the Disciplinary Authority, Appellate Authority and the learned Single Judge, as regards the gross misconduct of the appellant, this Court should not interfere with the said findings, more particularly, when they are not found to be perverse. The learned counsel has further submitted relying upon the various decisions of Hon'ble Supreme Court that the initiation of criminal proceedings would not bar the departmental proceedings, nor the acquittal in criminal case would decide the fate of the departmental proceedings. Learned counsel has also submitted that the Inquiry Officer had granted full opportunity to the appellant by supplying all documents relied upon by the department and also by permitting the appellant to cross-examine the witnesses at length examined by the department, and that it was for the appellant to summon the hand writing expert if he wanted to cross-examine him on the opinion given by him. The appellant having failed to avail of the opportunity available to him, no grievance could be made by the appellant before the Court now alleging violation of principles of natural justice. The learned counsel for the respondents also submitted that the Disciplinary Authority is the sole Judge of facts and unless the findings are found to be totally perverse or improper shocking the conscience of the Court, the Court could not come to a different finding from that arrived at by the Inquiry Officer, the scope of judicial review being very limited over the decisions of the Disciplinary Authority and the Appellate Authority of the department. 6. Before adverting to the rival contentions raised by the learned counsel for the parties, it would be beneficial to refer to the legal position reiterated by the Apex Court time and again as regards the scope of judicial review over the administrative decisions. 6. Before adverting to the rival contentions raised by the learned counsel for the parties, it would be beneficial to refer to the legal position reiterated by the Apex Court time and again as regards the scope of judicial review over the administrative decisions. A very pertinent observations are made by the Apex Court in the Case of V. Ramana vs. A.P. SRTC and Others (2005) 7 SCC 338 are required to be reproduced in which the Apex Court, considering the various earlier Judgments of Hon'ble Supreme Court as regards the scope of judicial review, has observed as under:- "11. The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffered from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in Wednesbury case the court would not go into the correctness of the choice made by the administrator open to him and the court should not substitute its decision for that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision." 7. In view of the above stated legal position, let us examine whether there was any deficiency in the decision making process of the disciplinary authority, or whether the findings of the inquiry officer, on the basis of which the disciplinary authority had imposed the penalty of termination of service, were so perverse or shocking to the conscience of the court, requiring interference by this court. 8. At the out-set, it is required to be stated that the appellant was placed under suspension immediately on the registration of the FIR against him for the alleged offences on 21.10.1976. Thereafter, the suspension was revoked but the departmental proceedings were initiated against him by serving the appellant memorandum of charge-sheet, pending the said criminal case registered against him. It is pertinent to note that the appellant was acquitted by the concerned Criminal Court only on 19.9.1996, when the writ petition being' No.5126/1989 was pending before the learned Single Judge, filed against the order passed by the Appellate Authority confirming the penalty of termination of services imposed by the Disciplinary Authority. It is pertinent to note that the appellant was acquitted by the concerned Criminal Court only on 19.9.1996, when the writ petition being' No.5126/1989 was pending before the learned Single Judge, filed against the order passed by the Appellate Authority confirming the penalty of termination of services imposed by the Disciplinary Authority. Under the Circumstances, this Court does not find any substance in the submissions made by the learned counsel for the appellant that the departmental inquiry proceedings should have been dropped as the appellant was acquitted in the criminal case. Since, the departmental disciplinary proceedings were already finalised holding the appellant guilty of the charges levelled against him, the department did not have the occasion to deal with the findings arrived at by the Criminal Court while acquitting the appellant in the Criminal Case. 9. Even otherwise as per the legal position settled by the Hon'ble Supreme Court in catena of decisions, the nature and scope of the criminal case being very different from that of the departmental disciplinary proceedings, an order of acquittal cannot conclude the departmental proceedings. A beneficial reference of the Judgments of the Apex Court, in Case of Nelson Motis vs. Union of India and Another AIR 1992 SC 1981 and in Case of Senior Supdt. of Post Offices, Pathananthitta and Others vs. A. Gopalan AIR 1999 SC 1514 be made in this regard. This Court also does not find any substance in the submissions made by the learned counsel for the appellant that the departmental proceedings should not have been initiated against the appellant, when the appellant was already facing the criminal trial on the same set of facts and charges. It is needless to say that the initiation of disciplinary proceedings and initiation of criminal case both are separate proceedings and the standard of proof is much more higher in criminal trial than that required in the departmental proceedings, as in the criminal trial, the guilt of the accused is required to be proved beyond reasonable doubt, whereas in the disciplinary proceedings the misconduct of the delinquent could be proved on the basis of preponderance of probabilities. The said view has been upheld in case of Kamaladevi Agrawal vs. State of West Bengal, (2002)(1) SCC 555, in case of Commissioner of Police vs. Narendra Singh (2006) 4 SCC 265 . The said view has been upheld in case of Kamaladevi Agrawal vs. State of West Bengal, (2002)(1) SCC 555, in case of Commissioner of Police vs. Narendra Singh (2006) 4 SCC 265 . The said view has also been re-affirmed by the Apex Court in the subsequent decisions relied on by the leaned counsel Mr. Jaiman, in case of State of Punjab vs. Prem Sarup (supra) and State of Hyderabad vs. P. Kata Rao (Supra), however the Apex Court, considering the distinguishing facts had interfered with the decisions of the disciplinary authorities. 10. Coming to the next contention raised by the learned counsel for the appellant that there was violation of principles of natural justice at the instance of Inquiry Officer, while conducting the inquiry proceedings, it may be stated that the appellant, at no point of time during the said proceedings had raised any objection against non-supply of any document or non granting of any opportunity of cross-examining the witnesses examined by the department. On the contrary, it transpires from the record of the Inquiry Officer that the appellant had cross-examined the witnesses at length, and had never urged to cross-examine the hand writing expert whose opinion was relied upon by the Inquiry Officer, along with the other evidence, to hold that the signatures on the cheque in question were forged by the appellant, for encashing the said cheque in his favour. The Inquiry Officer, had submitted the report discussing in detail the evidence adduced by the department for arriving at the said findings, which report was also confirmed by the Disciplinary Authority while imposing the penalty of termination of services of the appellant. At this juncture, a very pertinent observations made by the Apex Court in the Case of Kuldeep Singh vs. The Commissioner of Police and Others AIR 1999 SC 677 , pointing out the difference between the perverse findings and non perverse findings are required to be reproduced as under:- "10.A broad distinction has, therefore, to be maintained between the decision which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever, compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with." 11. In the instant case, learned counsel for the appellant has failed to point out as to how the findings arrived at by the Inquiry Officer were based on no evidence, or thoroughly unreliable evidence tentamounting to perverse findings, warranting interference of this Court. 12. The Apex Court also in the Case of High Court of Judicature at Bombay vs. Shashikant S. Patil and Another (2000) 1 SCC 416 has held that- "The settled legal position is that if there is some legal evidence on which findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution of India." 13. In the instant case, the learned counsel for the appellant has not been able to show as to why the oral as well as the documentary evidence adduced by the department in the departmental proceedings conducted by the Inquiry Officer, should be ignored, and as to how the findings arrived at by the Inquiry Officer, relying upon the said legal evidence could be said to be perverse findings, and as to how the learned Single Judge had failed to exercise the limited powers of judicial review in the writ petition filed by the appellant. 14. As regards the proportionality of the punishment also, the law has been well settled by the Apex Court in number of cases, to the effect that the High Court should be very slow in interfering with the quantum of punishment. The Apex Court explaining the "Wednesbury principle" and considering the various earlier decisions in the Case of Om Kumar and Others vs. Union of India (2001) 2 SCC 386 has held as under:- "71. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as 'arbitrary' under Article 14, the Court is confined to Wednesbury principles as a secondary reviewing authority. Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned as 'arbitrary' under Article 14, the Court is confined to Wednesbury principles as a secondary reviewing authority. The Court will not apply proportionality as a primary reviewing Court because no issue of fundamental freedoms nor of discrimination under Article 14 applies in such a context. The Court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time taken in the Courts, and such extreme or rare cases can the Court substitute its own view as to the quantum of punishment." 15. The said decision has also been followed in number of and other cases. To cite a few are State of U.P. vs. Shiv Shankar (2006) 3 SCC 276 , V. Ramana vs. A.P.SRTC and Others (2005) 7 SCC 338 and State of Rajasthan vs. Mohd. Ayub Naz (2006) 1 SCC 589 = RLW 2006(2) SC 1084. 16. In view of the above, this Court does not find any illegality or infirmity in the order passed by the learned Single Judge, dismissing the writ petition of the appellant and confirming the order . of the Appellate Authority, terminating the services of the appellant. 17. The appeal being bereft of merits deserves to be dismissed and is accordingly dismissed.