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2015 DIGILAW 294 (JK)

Mushtaq Ahmed Mir v. State of J & K

2015-06-02

B.S.WALIA, N.PAUL VASANTHAKUMAR

body2015
JUDGMENT : B.S. Walia, J. 1. This Letters Patent Appeal has been filed against the dismissal of SWP No. 2085/1998, by the learned Single Judge wherein the appellant/petitioner had sought quashing of impugned Order No. 423 of 1998, dated 06.05.1998 as also the issuance of Writ of Mandamus commanding the respondents to allow him to continue in service with all consequential benefits from the date of passing of the impugned order. Learned counsel for the appellant contends that the order passed by the learned Single Judge is liable to be set aside and writ petition be allowed, inter alia, on the ground that the enquiry was not fair and proper as: (i) Same was conducted at the back of the appellant and he was not permitted to cross-examine the witnesses; (ii) Appellant was not given copies of the documents relied upon by the enquiry officer; (iii) Appellant was not permitted to adduce defence evidence; (iv) Termination order was not served on the appellant and the same was provided to him on 19.05.1998 only on his applying for certified copy of the same; (v) Request by the appellant for production of officers and constables posted at Jammu as defence witnesses was refused; (vi) Enquiry was conducted in a biased manner and appellant was rot permitted to examine the officers and police personnel with whom he remained at Jammu from 19.10.1997 to 24.10.1997; (vii) Charge sheet could not be issued by enquiry officer and the charges levelled being of criminal nature were required to be investigated by conducting a trial, therefore, enquiry could not have been conducted; (viii) Harsh punishment was given to the appellant while no such punishment was given to the constable on guard duty with the same vehicle; (x) There was no proper application of mind and respondent No. 4 was not competent to appoint the enquiry officer who conducted the enquiry. 2. 2. That on the other hand learned counsel for the respondents contended that the learned Single Judge was correctly of the view that as per record the appellant was guilty of grave misconduct on account of misuse of the government vehicle for personal gains w.e.f. 19.10.1997 to 25.10.1997 while working as a driver, that a proper summary of allegations was served on the appellant and enquiry conducted as per guidelines under the J & K Police Manual, that the enquiry officer recorded statements of the witnesses who had deposed against the appellant, that the enquiry revealed that sufficient opportunity had been provided to the appellant to cross-examine the witnesses and further that the appellant was given due opportunity to rebut the evidence against him. He further contended that on conclusion of the enquiry proceedings, a show cause notice about the proposed punishment was also issued to the appellant to which he gave reply, denying the charges levelled against him and took up the plea mainly of personal rivalry of some employees of the Bn. who were bent upon implicating him in a false case so as to lower him in the eyes of his officers. Learned counsel further highlighted that the learned Single Judge was pleased to observe that as per reply to the show cause notice, the appellant had not taken the plea of not having been provided an opportunity to participate in the proceedings. On the basis of the same, learned counsel contends that the learned Single Judge was of the view that the enquiry had been conducted in accordance with law, the impugned order was comprehensive, no illegality or irregularity had been committed qua the same and in view thereof challenge to the order of dismissal was rejected and the writ petition dismissed. 3. Brief facts of the case necessary for the adjudication of the instant Letters Patent Appeal are that:- The petitioner constable while working as driver with the J & K Armed Police, 5th Bn. Anantnag was deputed for government duty on Truck No. JK01A-8534, vide office movement order dated 13.10.1997 whereupon the petitioner along with other officials proceeded to Jammu on the same day and returned to Bn. Headquarter on 26.10.1997. Pursuant to the return of the appellant in Bn. Anantnag was deputed for government duty on Truck No. JK01A-8534, vide office movement order dated 13.10.1997 whereupon the petitioner along with other officials proceeded to Jammu on the same day and returned to Bn. Headquarter on 26.10.1997. Pursuant to the return of the appellant in Bn. Headquarters it came to the notice of the senior officers that the appellant had misused the government vehicle for his personal gains w.e.f. 19.10.1997 to 25.10.1997 and had maliciously with intention to commit fraud with the department undertaken an unauthorised trip from Jammu to Srinagar and vice versa by carrying private goods/contrabands items for remuneration. The appellant was placed under suspension and departmental enquiry was ordered, on conclusion of which, charges were found to be proved whereupon vide Order No. 423 of 1998, dated 06.05.1998 the appellant was dismissed from service by the Commandant, JKAP 5th Bn. Anantnag. 4. The impugned order was challenged before the learned Single Judge, inter alia, on the grounds that the same had been passed without conducting any enquiry and without affording the appellant an opportunity of being heard. In the objections to the writ petition, the respondents took up the stand that a regular enquiry was conducted against the appellant and on the conclusion of the same, the charges were held proved against the appellant, whereupon the appellant was dismissed from service by the competent authority after due compliance with the Rules including giving show cause notice against the penalty proposed to be imposed. 5. A perusal of the impugned order dated 06.05.1998 reveals that the appellant was deputed as driver of vehicle No. JK01A-8534 for government duty vide office movement order issued under endorsement No. 16806-9/V, dated 13.10.1997, whereupon the appellant along with the vehicle and other officials proceeded to Jammu on the same day. On his return to Bn. HQ on 26.10.1997, it came to the notice of the senior officers that the appellant had misused the government vehicle for his personal gains w.e.f. 19.10.1997 to 25.10.1997 maliciously with an intention to commit fraud with the department by undertaking an unauthorised trip from Jammu to Srinagar and from Srinagar to Jammu by carrying private goods/contraband items for remuneration. The appellant was placed under suspension vide Order No. 1363 of 1997, dated 08.11.1997 by the Commandant JKAP 5th Bn. and enquiry was entrusted to the Adjutant (Dy. SP) of the Unit. The appellant was placed under suspension vide Order No. 1363 of 1997, dated 08.11.1997 by the Commandant JKAP 5th Bn. and enquiry was entrusted to the Adjutant (Dy. SP) of the Unit. After obtaining sanction for holding departmental enquiry against the appellant from the District Magistrate Anantnag vide letter No. 2459/DMA, dated 29.12.1997, departmental enquiry was initiated by the enquiry officer as per rules and regulations. During the course of the enquiry, the appellant was served with the summary of allegations, to which, he did not plead guilty. Statement of witnesses were recorded against the appellant in his presence and the appellant was provided full opportunity to cross-examine the said witnesses. 6. In paragraph No. 2 of the objections to the writ petition it was highlighted that during the appellants short span of service, he was awarded eleven minor and two major punishments for dereliction of duty/misconduct, besides 135 days of service had been treated as dies-non and the same clearly established that the appellant did not have an unblemished service record. 7. As per paragraph Nos. 8 & 9 of the objections, the appellant was fully associated with the enquiry at all stages, summary of allegations was served upon him after obtaining permission from the District Magistrate Anantnag but the appellant did not plead guilty. Subsequently, statements of prosecution witnesses were recorded in the presence of the appellant and the appellant also cross-examined the witnesses. Signatures of the appellant were also obtained on the statement, which were on the record of the respondents. On assessment of the statements of the witnesses, a case was made out for issuance of charge-sheet and accordingly, in terms of Rule 359(5) the enquiring officer (Dy. SP) charge-sheeted the appellant as he was competent to conduct the enquiry as all gazetted officers are empowered by the Ministry of Home to conduct enquiry. It was further mentioned that as per Police Rule 359(5), the enquiry officer alone is competent to issue and serve charge-sheet and not the appointing authority. 8. The objections further mention that the appellant was provided full opportunity to produce defence witnesses, oral as well as documentary as evident from the last lines of the charge-sheet itself but he did not produce any evidence in support of his defence, except for putting forth a concocted story, which had no basis. 8. The objections further mention that the appellant was provided full opportunity to produce defence witnesses, oral as well as documentary as evident from the last lines of the charge-sheet itself but he did not produce any evidence in support of his defence, except for putting forth a concocted story, which had no basis. On conclusion of the enquiry, the enquiry officer while holding that the allegations levelled against the appellant stood proved recommended his dismissal from service for committing fraud with the department by misusing the departmental vehicle for his personal gain. Contention of the appellant that he had sought record was denied as incorrect. 9. Enquiry report was considered by the disciplinary authority whereupon show-cause notice was issued to the appellant vide office endorsement No. Estt./5012/V, dated 24.04.1998 calling upon the appellant to show cause as to why he should not be dismissed from service. The appellant submitted reply and repeated a concocted story. The same was considered by the appointing authority i.e. Commandant who after taking into account all aspects of the matter, dismissed the appellant from service on the ground that being a driver of government vehicle No. JK01A-8534 of 5th Bn. of JKAP, the appellant had maliciously and with an intention to commit fraud, misused official property for carrying goods/contraband items from Sangam Bijbehara to Jammu and vice versa for personal gain, thereby he not only misused the government vehicle but also carried contraband items. 10. In paragraph No. 13 of the objections, it has been stated that the stand of the appellant that respondent No. 4 alone was competent to issue the charge-sheet and summary of allegations, was incorrect in view of Rule 359(5) as per which it is the enquiring officer alone, who is competent to serve the charge-sheet and the enquiring officer in the instant case being of the rank of Dy. SP, was competent to conduct the enquiry. 11. We have heard learned counsel for the parties and with their able assistance have gone over the record. SP, was competent to conduct the enquiry. 11. We have heard learned counsel for the parties and with their able assistance have gone over the record. A perusal of the aforementioned position reveals that the first three pleas i.e. i) the enquiry was conducted behind the appellants back and he was not permitted to cross-examine the witnesses; ii) he was not supplied a copy of the documents relied upon by the enquiry officer; iii) he was not permitted to adduce defence evidence, are absolutely baseless as he not only filed reply to the charge-sheet, but witnesses were examined in his presence besides cross-examined by him. Moreover, he was given opportunity to lead oral/documentary evidence in defence, but he preferred a statement on 21.04.1998 that he did not wish to lead any evidence except his own statement. As regards the 4th plea that the appellant was not supplied termination order, a perusal of paragraph No. 10 of the writ petition reveals that the appellant came to know that he had been dismissed from service vide order No. 423 of 1998, dated 06.05.1998 whereupon he applied for copy and same was provided to him on 19.05.1998. The same was impugned in the writ petition. The appellant in the writ petition has not taken up the stand that termination order was not supplied to him. In any case, once the appellant admitted that he knew about the passing of the termination order and the same was impugned by him in the writ petition, no prejudice can be said to have been caused nor shown to have been caused to the appellant. Accordingly, plea No. 4 is also without merit. Likewise, plea Nos. 5 & 6 that he had sought production of officers and constables posted at Jammu as defence witnesses but the same was refused, has been controverted by the respondents in paragraph No. 12 of the reply to the writ petition stating therein that the appellant was associated with the enquiry from the beginning and was provided all documents required under rules, evidence was recorded in his presence, cross-examination of witnesses was done by the appellant, besides he preferred his own evidence and refused to produce any defence/document and made a statement on 21.04.1998 that he did not wish to lead any evidence except to make his own statement, therefore, the aforesaid plea is also without merit. Seventh plea, namely that charge-sheet could not be issued by the enquiry officer and charges being of criminal nature, were required to be investigated by conducting a trial, is also without any merit in view of Rule 359 of the Police Rules. As regards the 8th plea i.e. harsh punishment was given to the appellant whereas no such punishment was given to the constable on guard duty with the same vehicle, the stand of the respondents in paragraph No. 12(d) of the reply is that the gunman attached with the vehicle had no option but to follow the driver and it is the appellant alone who plied the vehicle illegally and unauthorisedly for personal gains from Jammu to Srinagar and back to Jammu while carrying private goods and contraband items, therefore, the nature of responsibilities and omission & commission were different were accordingly assessed and properly dealt with for providing punishment. As regards the last plea that there was no proper application of mind and respondent No. 4 was not competent to appoint the enquiry officer, the same is unsustainable in view of Rule 359(1)(a) of the Police Rules as the enquiry officer was of the rank of Dy. SP i.e. a gazetted officer, therefore, competent to hold enquiry. 12. Moreover, a perusal of the impugned order reveals that the same is based on the statements of twelve (12) witnesses. As has already been noted above, witnesses were examined in the presence of the appellant and he was given opportunity to cross examine the said witnesses. The statements of the witnesses establish misconduct alleged against the appellant. The disciplinary authority, on the basis of evidence of the witnesses, held that the allegations levelled against the appellant stood corroborated, whereupon appellant was charge-sheeted and in reply thereto stated that he along with escort party remained stationed at Gulshan Ground Jammu upto 25.10.1997 but then on 25.10.1997 he left along with the vehicle towards Bn. HQ and stayed at Banihal during the night and finally reported at Bn. HQ on 26.10.1997. HQ and stayed at Banihal during the night and finally reported at Bn. HQ on 26.10.1997. The disciplinary authority recorded that the appellant had flatly denied his arrival at Srinagar and from Srinagar to Jammu during the period 19.10.1997 to 25.10.1997 but the false stand of the appellant stood exposed from the statements of witness No. 8 & 9 who stated that on 20.10.97 they were performing duty on the southern side of Jawahar Tunnel between 0600 Hrs. to 0700 Hrs. Truck No. 8534 JK01-A driven by Constable Driver Mushtaq Ahmed No. 616 and escorted by Ct. Ab Rashid No. 76 crossed the Jawahar Tunnel towards the Valley for which a proper entry was made in the records maintained at Jawahar Tunnel for the vehicles incoming to Kashmir Valley. Likewise witness No. 10 and 11 stated that on 22.10.97 they were performing duty on the northern side of Jawahar Tunnel whereupon at about 0630 Hrs. on the said date Vehicle No. 8534 JK01A driven by Constable driver Mushtaq Ahmed No. 616 and escorted by Ct. Ab. Rashid No. 76 crossed the Jawahar Tunnel towards Jammu and a proper entry to the above effect was made in the records maintained at Jawahar Tunnel for the vehicles out going from the Valley. The aforementioned statements were not subjected to cross-examination despite opportunity having been granted. The same demolishes the plea of innocence as set up by the appellant. 13. The disciplinary authority by taking into account all aspects of the matter dismissed the appellant from service by passing a detailed order in exercise of the powers vested in it under Article 311 of the Constitution of India read with Section 126 of the Constitution of J & K and Rule 335 of the J & K Police manual. 14. The disciplinary authority by taking into account all aspects of the matter dismissed the appellant from service by passing a detailed order in exercise of the powers vested in it under Article 311 of the Constitution of India read with Section 126 of the Constitution of J & K and Rule 335 of the J & K Police manual. 14. The learned Single Judge perused the record of the case, considered the matter in entirety and on being convinced that the record revealed involvement of the appellant in a grave misconduct of misuse of government vehicle No. JK01A-8534 for his personal gains w.e.f. 19.10.1997 to 25.10.1997 as well as of proper proceedings having been held, statements of witnesses recorded, opportunity having been granted to the appellant to cross-examine the witnesses as also of his having been given a chance to rebut the evidence against him, show-cause notice having been issued to him, reply having been filed besides it being not the stand of the appellant in the writ petition that he was not permitted to participate in the proceedings, came to the conclusion that the impugned order being comprehensive was not vitiated due to any illegality or irregularity, therefore was immune from challenge. 15. Law with regard to the powers of the High Court under Article 226 of the Constitution while considering punishment order imposed in departmental proceedings is well settled. In State of A.P. v. S. Sree Rama Rao AIR 1963 SC 1723 ), the Hon'ble Supreme Court was pleased to hold: "7. 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 especially when the charged officer had not participated in the inquiry and had not raised the grounds urged by him before the High Court by the inquiring authority." In Apparel Export Promotion Council v. A.K. Chopra (1999) 1 SCC 759 , the Hon'ble Supreme Court while taking note of various judgments was pleased to observe as under: "16. The High Court appears to have overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to re-appreciate the evidence and come to its own conclusion, on facts, being the sole fact-finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since the High Court does not sit as an appellate authority over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the disciplinary or the departmental appellate authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Both the learned Single Judge and the Division Bench of the High Court, it appears, ignored the well-settled principle that even though judicial review of administrative action must remain flexible and its dimension not closed, yet the court, in exercise of the power of judicial review, is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process. Judicial review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process. Lord Hailsham in Chief Constable of the North Wales Police v. Evans observed: "The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorized or enjoined by law to decide for itself, a conclusion which is correct in the eyes of the court." 17. Judicial review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the court, while exercising the power of judicial review, must remain conscious of the fact that if the decision has been arrived at by the administrative authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the court cannot substitute its judgment for that of the administrative authority on a matter which fell squarely within the sphere of jurisdiction of that authority. 18. It is useful to note the following observations of this Court in Union of India v. Sardar Bahadur: (SCC p. 623, para 15) "Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court, exercising its jurisdiction under Article 226, to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held, the question of adequacy or reliability of the evidence cannot be canvassed before the High Court." 19. After a detailed review of the law on the subject, this Court, while dealing with the jurisdiction of the High Court or Tribunal to interfere with the disciplinary matters and punishment in Union of India v. Parma Nanda opined: (SCC p. 189, para 27) "27. We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the enquiry officer or competent authority where they are not arbitrary or utterly perverse. We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the enquiry officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice, what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority." 20. In B.C. Chaturvedi v. Union of India, this Court opined: (SCC p. 759, para 13) "13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to re-appreciate the evidence or the nature of punishment. In a disciplinary enquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal." XXX 21. Again in Govt. of T.N. v. A. Rajapandian, this Court opined: (SCC p. 217, para 4) "It has been authoritatively settled by a string of authorities of this Court that the Administrative Tribunal cannot sit as a court of appeal over a decision based on the findings of the enquiring authority in disciplinary proceedings. Where there is some relevant material which the disciplinary authority has accepted and which material reasonably supports the conclusion reached by the disciplinary authority, it is not the function of the Administrative Tribunal to review the same and reach different finding than that of the disciplinary authority. The Administrative Tribunal, in this case, has found no fault with the proceedings held by the enquiring authority. It has quashed the dismissal order by re-appreciating the evidence and reaching a finding different than that of the enquiring authority." (emphasis ours) In R.S. Saini v. State of Punjab, (1999) 8 SCC 90 , the Hon'ble Supreme Court was pleased to hold as under: 16. It has quashed the dismissal order by re-appreciating the evidence and reaching a finding different than that of the enquiring authority." (emphasis ours) In R.S. Saini v. State of Punjab, (1999) 8 SCC 90 , the Hon'ble Supreme Court was pleased to hold as under: 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 authority 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. 18. xxx 19. We have noted earlier that the scope of judicial review in matters of this nature being restricted, the High Court had to consider the challenge to the impugned order with a limited degree of scrutiny that was called for. 18. xxx 19. We have noted earlier that the scope of judicial review in matters of this nature being restricted, the High Court had to consider the challenge to the impugned order with a limited degree of scrutiny that was called for. We too have considered the complaint within that limited scope in order to find out the correctness of the allegation that the impugned order of the disciplinary authority suffered from the vice of perversity, non-application of mind and tainted by malice and having come to the conclusion that the report of the inquiring authority cannot be faulted with on any of the grounds stated above, we are unable to agree with the appellant. For the reasons stated above, this appeal fails and is hereby dismissed. No costs. R.S. Saini's case (Supra) as well as other cases were relied upon in SBI v. Narendra Kumar Pandey, (2013) 2 SCC 740 to hold as under: "25. The High Court, in our view, under Article 226 of the Constitution of India was not justified in interfering with the order of dismissal passed by the appointing authority after a full-fledged inquiry, especially when the Service Rules provide for an alternative remedy of appeal. It is a well-accepted principle of law that the High Court while exercising powers under Article 226 of the Constitution does not act as an appellate authority. Of course, its jurisdiction is circumscribed and confined to correct an error of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of the principles of natural justice. In SBI v. Ramesh Dinkar Punde this Court held that the High Court cannot reappreciate the evidence acting as a court of appeal. We have, on facts, found that no procedural irregularity has been committed either by the Bank, presenting officer or the inquiring authority. Disciplinary proceedings were conducted strictly in accordance with the Service Rules." The principles enunciated in the aforementioned judgments are applicable in the facts of the instant case. Accordingly, in the light of what has been discussed above, we find no reason to differ with the conclusion recorded by the learned Single Judge, therefore, dismiss the instant Letters Patent Appeal.