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2015 DIGILAW 1268 (DEL)

Govt of NCT of Delhi v. Virender Kumar

2015-05-07

I.S.MEHTA, KAILASH GAMBHIR

body2015
JUDGMENT : Kailash Gambhir, J.(Oral)-- 1. By this petition filed under Articles 226/227 of the Constitution of India, petitioner seeks to challenge the order dated 01.10.2008 passed by learned Central Administrative Tribunal, Principal Bench, New Delhi in O.A. No. 1635/2007. 2. Addressing arguments, Ms. Avnish Ahlawat, Advocate submits that the respondent was caught red handed with 200 pouches of tobacco in a polythene bag beneath his driving seat while he was deployed on ambulance van DBL 9925 and this was detected by one Mr. Raj Kumar, Constable while the coach was in the process of unloading. Counsel also submits that the Tribunal has arrived at a wrong finding by taking a view that it was a case of no evidence whereas the petitioner got examined two important witnesses i.e. one Mr. R.N. Meena and Mr. Ram Phal to prove the articles of charges framed against the respondent. Counsel also submits that the respondent himself had signed the seizure memo and therefore, he could not dispute the recovery of the said pouches from him. Counsel also submits that the presence of Raj Kumar was recorded in the very first inquiry but later, he could not be produced because of the fact that the Battalion of which he was a part had moved out to a far of place in the South. 3. Rebutting the aforesaid contentions raised by the learned counsel for the petitioner, Mr. G.D. Bhandari, Advocate appearing on behalf of the respondent submits that the Tribunal has rightly held that it is a case of no evidence as none of the material witnesses were examined by the petitioner department. Counsel also submits that this was a third inquiry which was held against the respondent and even in this inquiry, the petitioner failed to adduce any evidence or any material witness to prove the articles of charge framed against him. Counsel also submits that even the evidence produced by the petitioner does not extend any support to the case of the petitioner rather, their evidence lends support to the defence set up by the respondent. In support of his arguments, Counsel for the respondent relies on the judgment of the Apex Court in the case of Jasmer Singh v. State of Haryana and another reported in (2015) 4 SCC 458 and also on the judgment of the learned Tribunal passed in the case of Dr. In support of his arguments, Counsel for the respondent relies on the judgment of the Apex Court in the case of Jasmer Singh v. State of Haryana and another reported in (2015) 4 SCC 458 and also on the judgment of the learned Tribunal passed in the case of Dr. D.P.S. Luthra v. Union of India & Others, reported in (1988) 8 Administrative Tribunal Cases 815 and 4. We have heard the submissions of the learned counsel for the parties and have also perused the impugned order and the material on record. We have also gone through the judgments cited by both the parties. 5. The respondent was a driver and on 25.9.1999, he was deployed on ambulance van No. DBL 9925. He was ordered to transport 191 bread packets from Jail No. 2 to Jail No. 4. When he reached the gate of the Jail No. 4, the TPS staff and Darban searched the vehicle and also the respondent in person and after satisfying themselves, permitted the respondent to take the vehicle inside Jail No. 4. The bread packets were unloaded from the van by the concerned staff and after unloading the breads when he was returning back, he was stopped at the Gate and was detained by the duty staff on the pretext that some tobacco had been recovered from his vehicle. 6. It is the case of the respondent that the duty staff had carried a complete search of his person and the vehicle, and the report being clear, the duty officer permitted the vehicle to be taken inside, and that neither during the process of search, nor during unloading of the bread packets at the fixed place inside the jail, did anyone recover anything objectionable from the vehicle. Under orders of the Superintendent, jail No. 4, his statement was also obtained, wherein it was stated by him that he was duly searched along with the vehicle prior to the grant of permission for taking the vehicle inside jail No. 4, where he got unloaded 191 bread packets. The Superintendent after doing so and satisfying himself, allowed the respondent herein to take away the vehicle for further duty. Seizure memo was prepared, which was signed by Shri Mahavir Singh, Deputy Superintendent/jail No. 1, who conducted a preliminary enquiry recorded the statements of concerned staff and submitted his report accordingly to higher authorities. The Superintendent after doing so and satisfying himself, allowed the respondent herein to take away the vehicle for further duty. Seizure memo was prepared, which was signed by Shri Mahavir Singh, Deputy Superintendent/jail No. 1, who conducted a preliminary enquiry recorded the statements of concerned staff and submitted his report accordingly to higher authorities. The statements recorded by him were, however, not supplied to the respondent despite repeated requests made on his behalf. After one and a half months of the incident, the petitioner placed the respondent under suspension vide order dated 16.7.1999 retrospectively w.e.f. 1.6.1999. Major penalty chargesheet dated 21.10.1999 was issued to the respondent under rule 14 of the CCS (CCA) Rules, 1965. The charge against the respondent was that while driving ambulance No. DBL 9925 on 29.9.1999 at about 2.40 p.m., in the advent of transporting bread packets to jail No. 4 he smuggled 200 packets of Nevla brand tobacco under driver’s seat. 7. The respondent was dismissed from service by the order passed by the Disciplinary Authority. We have also been informed that twice the inquiry proceedings conducted against the respondent had been set aside and what we are now examining is the order passed by the tribunal in third inquiry proceedings. It is not in dispute between the parties that in the third inquiry, the petitioner had examined only two witnesses to prove the articles of charges against the respondent. The two witnesses are Mr. R.N. Meena and Mr. Ram Phal. The learned Tribunal after having gone through the evidence of the two witnesses and after perusing the records of the inquiry, came to conclusion that the two witnesses examined by the department did not connect the applicant to the recovery of tobacco at all. The learned Tribunal further held that they were not the witnesses who may have recovered tobacco underneath the driver seat in the van nor were they present at the time when the recovery was made. To say that the material witness Mr.Raj Kumar could not be produced in the inquiry proceedings on account of the fact that the battalion of which he was a member was posted somewhere in South is a plea which hardly satisfies the Court. To say that the material witness Mr.Raj Kumar could not be produced in the inquiry proceedings on account of the fact that the battalion of which he was a member was posted somewhere in South is a plea which hardly satisfies the Court. The signing of the seizure memo by the respondent is also of no consequence and the Tribunal rightly observed that the seizure memo would not connect the respondent to the recovery of tobacco as in the seizure memo it is only mentioned that the same has been recovered beneath the driver seat of the ambulance van which was driven by him for supplying bread for langar in Jail No. 4. 8. We are also surprised to learn that when the respondent took the vehicle carrying the said bread for unloading at Jail No. 4, why the said tobacco could not be traced when admittedly the vehicle was fully searched by the staff. Thus the presence of the tobacco in the vehicle being driven by the respondent beneath his driving seat after the unloading of the breads at least proves the complicity of the other staff members who did not perform their duties with due diligence at the time of their initial search of the vehicle. 9. It is a settled legal position that when in an inquiry, the department fails to prove the articles of charge with the help of the documentary evidence or the witnesses, then certainly such a case will be a case of no evidence. Findings recorded by the Inquiry Officer and the disciplinary authority based on no evidence cannot be sustained. The learned Tribunal has referred to the judgment of the Hon’ble Supreme Court in the case of B.C. Chaturvedi v. Union of India, reported in (1995) 6 SCC 749 , where the Supreme Court held that the conclusion or finding reached by the disciplinary authority if based on no evidence or where the conclusion of finding be such as no reasonable person would ever reach, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case. Relevant para of the said judgment is reproduced as under:- “The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.” 10. We may also refer to another judgment of the Hon’ble Apex Court in the case of R.S. Saini v. State of Punjab and Ors. (1999)IILLJ1415SC wherein in paragraphs 16 and 17 , it has been held that the scope of interference is rather limited and has to be exercised within the circumscribed limits. It was noted as follows: "16. Before adverting to the first contention of the appellant regarding want of material to establish the charge, and of non-application of mind, we will have to bear in mind the rule that the court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings. 17. A narration of the charges and the reasons of the inquiring authority for accepting the charges, as seen from the records, shows that the inquiring has based its conclusions on materials available on record after considering the defence put forth by the appellant and these decisions in our opinion, have been taken in a reasonable manner and objectively. 17. A narration of the charges and the reasons of the inquiring authority for accepting the charges, as seen from the records, shows that the inquiring has based its conclusions on materials available on record after considering the defence put forth by the appellant and these decisions in our opinion, have been taken in a reasonable manner and objectively. The conclusion arrived at by the inquiring authority cannot be termed as either being perverse or not based on any material nor is it a case where there has been any non-application of mind on the part of the inquiring authority. Likewise the High Court has looked into the material based on which the enquiry officer has come to the conclusion. within the limited scope available to it under Article 226 of the Constitution and we do not find any fault with the findings of the High Court in this regard.” 11. In the light of the aforesaid discussion, we hardly find any tangible reason to disagree with the reasoning of the learned Tribunal in allowing the Original Application preferred by the respondent. Accordingly, we uphold the order passed by learned Tribunal and dismiss the present writ petition preferred by the petitioner. 12. It is ordered accordingly.