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2011 DIGILAW 370 (HP)

Shesh Ram v. State of Himachal Pradesh

2011-02-21

RAJIV SHARMA

body2011
JUDGMENT Rajiv Sharma, J. Material facts necessary for adjudication of this petition are that the disciplinary proceedings were initiated against the petitioner. Preliminary inquiry was also held against the petitioner. Inquiry Officer submitted his report to the disciplinary authority. The disciplinary authority imposed the penalty of two years’ forfeiture of service for the purpose of future increments on 27.10.2002. The petitioner preferred an appeal before the appellate authority. The appellate authority dismissed the appeal on 2nd September, 2003. Thereafter, the petitioner preferred a revision before the Additional Director General of Police. He dismissed the same on 10.6.2004. The mercy appeal preferred by the petitioner was also rejected by the competent authority on 16th October, 2004. 2. Mr. J.R. Poswal, learned counsel for the petitioner has strenuously argued that initiation of departmental proceedings and imposition of penalty upon his client was in contravention of the principles of natural justice. He then argued that the imposition of penalty of forfeiture of two years’ service permanently for the purpose of future increments is disproportionate to the alleged misconduct. He also argued that the orders passed by the appellate authority and revising authority are not speaking/detailed. 3. Mr. Vinod Thakur, learned Deputy Advocate General has supported the imposition of penalty upon the petitioner vide order dated 27.10.2002 and has also supported the orders passed by the appellate authority and revising authority and in mercy appeal. 4. I have heard the learned counsel for the parties and perused the pleadings carefully. 5. The petitioner was deployed at the residence of the Hon’ble Chief Minister on 18th February, 2002. One suspected man entered in the compound by jumping the fence and intruded a distance approximately 150 meters. Neither the petitioner nor other police officials put on duty apprehended him nor was he chased. It is in these circumstances that joint inquiry was initiated against one Shri Bhim Singh, Constable Ram Paul, Constable Hoshiar Singh and petitioner Shesh Ram. The preliminary inquiry was also held to ascertain prima facie whether to initiate disciplinary proceedings or not. The Inquiry Officer came to the conclusion that the petitioner was negligent in the discharge of his duties since he was put on a very sensitive duty to guard V.I.P. The petitioner had been given the opportunity to cross-examine all the witnesses. The learned counsel for the petitioner, Mr. The Inquiry Officer came to the conclusion that the petitioner was negligent in the discharge of his duties since he was put on a very sensitive duty to guard V.I.P. The petitioner had been given the opportunity to cross-examine all the witnesses. The learned counsel for the petitioner, Mr. J.R. Poswal has failed to point out any procedural irregularity in the disciplinary proceedings. Petitioner has been given full opportunity to defend himself. 6. The disciplinary authority on the basis of the inquiry report submitted by the Inquiry Officer has imposed the penalty of forfeiture of two years’ service permanently for the purpose of future increments upon the petitioner on 27.10.2002. The appeal preferred by the petitioner was rejected by the appellate authority on 2nd September, 2003. Thereafter in revision, the Additional Director General of Police has passed very detailed and speaking order on 10.6.2004 while rejecting the revision petition preferred by the petitioner. All the pleas raised by the petitioner in all the paras of revision petition have been discussed in depth by the revising authority. He has discussed all the points raised by the petitioner. According to the contents of order dated 10th June, 2004, the Commandant had considered the written reply filed by the petitioner before imposition of penalty. The order passed by the Director General of Police on 16.10.2004 is also speaking order. 7. Mr. J.R. Poswal, learned counsel for the petitioner has also argued that the copy of inquiry report was not supplied to the petitioner before the imposition of penalty. The petitioner has failed to point out any prejudice which has been caused to him by non-supply of the copy of inquiry report. 8. Their Lordships of Hon’ble Supreme Court in Haryana Financial Corporation and another versus Kailash Chandra Ahuja, 2008(9) SCC 31 have held as under (paras 21-25):- “From the ratio laid down in B. Karunakar, it is explicitly clear that the doctrine of natural justice requires supply of a copy of the Inquiry Officer's report to the delinquent if such Inquiry Officer is other than the Disciplinary Authority. It is also clear that non-supply of report of Inquiry Officer is in the breach of natural justice. It is also clear that non-supply of report of Inquiry Officer is in the breach of natural justice. But it is equally clear that failure to supply a report of Inquiry Officer to the delinquent employee would not ipso facto result in proceedings being declared null and void and order of punishment non est and ineffective. It is for the delinquent-employee to plead and prove that non-supply of such report had caused prejudice and resulted in miscarriage of justice. If he is unable to satisfy the Court on that point, the order of punishment cannot automatically be set aside. In the instant case, it is not in dispute by and between the parties either before the High Court or before us that a copy of the report of Inquiry Officer was not supplied to the delinquent-writ-petitioner. While the contention of the writ petitioner is that since failure to supply Inquiry Officer's report had resulted in violation of natural justice and the order was, therefore, liable to be quashed, the submission on behalf of the Corporation is that no material whatsoever has been placed nor a finding is recorded by the High Court that failure to supply Inquiry Officer's report had resulted in prejudice to the delinquent and the order of punishment was, therefore, liable to be quashed. The High Court, unfortunately, failed to appreciate and apply in its proper perspective the ratio laid down in B. Karunakar, though the High Court was conscious of the controversy before it. The Court also noted the submission of the Corporation that there was `no whisper' in the writ petition showing any prejudice to the delinquent as required by B. Karunakar, but allowed the writ petition and set aside the order of punishment observing that in such cases, prejudice is `writ large'. In our considered view, the High Court was wrong in making the above observation and virtually in ignoring the ratio of B. Karunakar that prejudice should be shown by the delinquent. To repeat, in B. Karunakar, this Court stated; "Whether in fact, prejudice has been caused to the employee or not on account of the denial to him of the report, has to be considered on the facts and circumstances of each case". It is settled law that principles of natural justice have to be complied with. One of the principles of natural justice is audi alteram partem ("Hear the other side"). It is settled law that principles of natural justice have to be complied with. One of the principles of natural justice is audi alteram partem ("Hear the other side"). But it is equally well settled that the concept `natural justice' is not a fixed one. It has meant many things to many writers, lawyers, jurists and systems of law. It has many colours, shades, shapes and forms. Rules of natural justice are not embodied rules and they cannot be imprisoned within the strait-jacket of a rigid formula.” 9. In fact, the copy of the same was made available to the petitioner with the show cause notice as per averments contained in the reply and it was available with the petitioner at the time when the appeal/revision/mercy appeal was filed. Mr. J.R. Powsal has argued that the copy of preliminary inquiry report has not been supplied to his client. He has failed to show any provision of law under which his client was entitled to the copy of preliminary inquiry report. Preliminary inquiry was instituted to find prima-facie whether the regular inquiry should be initiated against the petitioner or not. The Court is of the considered opinion that the inquiry has been conducted by the Inquiry Officer in accordance with law. He has been given opportunity to defend himself and also to cross-examine the witnesses. This Court will not sit in appeal over the findings recorded by the Inquiry Officer. 10. Their Lordships of Hon’ble Supreme Court in State of Uttar Pradesh and Another versus Man Mohan Nath Sinha and Another, (2009) 8 SCC 310 have held as under (paras 9 to 16):- “The formulation of the first question and the discussion that has followed in the impugned judgment suggests that the Division Bench attempted to appreciate the evidence which was produced before the inquiry officer. This is how the High Court proceeded to appreciate the evidence: “The Minister himself admits that out of the aforesaid amount Rs 37,00,304 he had received Rs 12 lakhs. He did not and could not give any proof or evidence to the contrary; even the inquiry officer did not accept the admission of the Minister for establishing that he had received Rs 12 lakhs, though it being admitted to (sic by) the Minister that he has received Rs 12 lakhs. He did not and could not give any proof or evidence to the contrary; even the inquiry officer did not accept the admission of the Minister for establishing that he had received Rs 12 lakhs, though it being admitted to (sic by) the Minister that he has received Rs 12 lakhs. The said amount thus, could not have been said to be either embezzled or misappropriated by the petitioner.” The Division Bench went on to scan the evidence produced before the inquiry officer in the following manner: “The petitioner has though given an explanation for the aforesaid transactions, but even without accepting that the Minister has authorised him orally to make the payment from the account and, even assuming that on the denial of the Minister of such oral instructions, the petitioner could not have made the deposit in his own account and could not have made the payment in case to petrol firms, but the fact remains that the said amount was actually paid to the petrol dealers and, therefore, it cannot be a case of embezzlement, so far the government money is concerned. The Minister himself admitted and it is also proved from the record that the signatures on the cheques were that of the Minister and the money was withdrawn from the Bank on his instructions by the petitioner. It is a different matter that the Minister qualified his statement by saying that the signatures were obtained on the blank cheques without indicating the actual amount which was likely to be withdrawn on the ground that the actual amount would be confirmed from the register to wards the price of petrol and then would be filled in, but the fact remains that the signatures on the cheques were that of the Minister, which signatures he put knowing that he was issuing the cheques for paying the price of petrol. It, therefore, cannot be said that the petitioner had withdrawn the amount by obtaining the signatures of the Minister on the cheques fraudulently.” In State of Orissa v. Mulidhar Jena a Constitution Bench of this Court held: (AIR p 408, para 14) “14. There are two other considerations to which reference must be made. In its judgment the High Court has observed that the oral evidence admittedly did not support the case against the respondent. There are two other considerations to which reference must be made. In its judgment the High Court has observed that the oral evidence admittedly did not support the case against the respondent. The use of the word "admittedly, in our opinion, amounts somewhat to an overstatement; and the discussion that follows this overstatement in the judgement indicates an attempt to appreciate the evidence which it would ordinarily not be open to the High Court to do in writ proceedings. The same comment falls to be made in regard to the discussion in the judgment of the High Court where it considered the question about the interpretation of the word" Chatrapur Saheb." The High Court has observed that in the absence of a clear evidence on the point the inference drawn by the Tribunal that Chatrapur Saheb meant the respondent would not be justified." This observation clearly indicates that the High Court was attempting to appreciate evidence. The judgment of the Tribunal shows that it considered several facts and circumstances in dealing with the question about the identity of the individual indicated by the expression "Chatrapur Saheb." Whether or not the evidence on which the Tribunal relied was satisfactory and sufficient for justifying its conclusion would not fall to be considered in a writ petition. That in effect is the approach initially adopted by the High Court at the beginning of its judgment. However, in the subsequent part of the judgment the High Court appears to have been persuaded to appreciate the evidence for itself and that, in our opinion, is not reasonable or legitimate.” In State of A.P. v. S. Sree Rama Rao a three-Judge Bednch of this Court held: (AIR pp.1726-27, para 7) “7. …….. The High Court is not constituted in a proceeding under Article 226 of the Constitution a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it 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. 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 in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in 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, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their 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 of the Constitution.” The aforesaid decisions were noticed by a Constitution Bench of this Court in State of Madras v. G. Sundaram, and it has been held that it is not open to the High Court to reappreciate the evidence before the Tribunal and record the conclusion that the evidence does not establish charges against the delinquent. In the words of the Constitution Bench: (AIR p. 1105, paras 9-10) “9. 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 Art. 226 of the Constitution. 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 Art. 226 of the Constitution. This view was reiterated in Union of India v. H. C. Goel. 10. 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.” The scope of judicial review in dealing with departmental enquiries came up for consideration before this Court in State of A.P. v. Chitra Venkata Rao and this Court held: (SCC pp.562-63, paras 21 and 23-24) “21. ……. 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 the 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 also 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 their 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. 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 re-opened 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. See Syed Yakoob v. K. S. Radhakrishnan, (1964) 5 SCR 64 = (AIR 1964 SC 477). 24. The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, re-assessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do. 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. The approach of the High Court in consideration of the matter suffers from manifest error and, in our thoughtful consideration, the matter requires fresh consideration by the High Court in accordance with law. On this short ground, we send the matter back to the High Court. Resultantly, the appeal is allowed and the order dated 23-5-2008, passed by the High Court is set aside. Writ petition is restored to the file of the High Court for fresh hearing and disposal. Needless to say that the respective arguments of the parties are kept open to be agitated before the High Court which obviously will be considered on their own merits. We request the High Court to dispose of the matter as expeditiously as may be possible and preferably within four months. No order as to costs.” 11. Mr. J. R. Poswal, learned counsel for the petitioner has also argued that the penalty imposed is disproportionate to the alleged misconduct. There is no merit in this ontention of the learned counsel for the petitioner. The petitioner was deployed to guard the official residence of Hon’ble the Chief Minister. He was put on a very sensitive duty. He has failed to discharge his duties since he has failed to apprehend the intruder. It was serious dereliction of duty on the part of the petitioner. The petitioner was deployed to guard the official residence of Hon’ble the Chief Minister. He was put on a very sensitive duty. He has failed to discharge his duties since he has failed to apprehend the intruder. It was serious dereliction of duty on the part of the petitioner. In these circumstances, the penalty of forfeiture of two years service permanently for the purpose of increments is neither disproportionate nor harsh. 12. Accordingly, in view of the observations made hereinabove there is no merit in the petition and the same is dismissed, so also the pending application(s), if any. There shall, however, be no order as to costs.