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Allahabad High Court · body

2016 DIGILAW 1443 (ALL)

Charanjeet Singh v. State of U. P.

2016-04-19

RITU RAJ AWASTHI

body2016
JUDGMENT Ritu Raj Awasthi, J. – Heard learned counsel for the petitioner as well as Mr. Sudeep Seth, learned counsel appearing for opposite parties no 3 to 4 and perused the record. 2. The writ petition was filed in the year 1990 challenging the order dated 03.08.1990 whereby the punishment of removal from service has been awarded to petitioner as well as the enquiry report dated 12.7.1990 holding petitioner guilty of misconduct. 3. As per given facts, the petitioner was appointed on the post of Security Supervisor-cum-Warden vide order dated 12.5.1987 in Tool Room Training Institute (ITTUP) which is an instrumentality of the State under Article 12 of the Constitution of India. The service conditions of the petitioner were governed under Institute of Tool Room Training U.P. Conduct, Discipline and Appeal Rules (for short the 'Rules'). He was confirmed in service vide order dated 16.5.1988. On the basis of certain charges and serious misconduct, petitioner was placed under suspension vide order dated 16.11.1989 against which he had preferred Writ Petition No. 10263 of 1989 wherein the Court had refused to interfere with the suspension order, however, had provided that the petitioner shall be paid full salary during suspension period. After completion of the disciplinary proceedings by the impugned order petitioner has been awarded punishment of removal which is under challenge in the present writ petition. 4. Learned counsel for the petitioner has mainly submitted that the enquiry proceedings were conducted by one R.S. Saxena who was inimical and prejudicial to petitioner. In spite of specific request for change of Enquiry Officer, the Enquiry Officer was not changed and Sri. R.S. Saxena had conducted the enquiry with predetermined mind to harm the petitioner. It is also contended that the statement of one Nankau who was the most important person so far as the alleged charge of misconduct levelled against the petitioner are concerned, was not examined in the enquiry proceedings and, as such, the enquiry proceedings were held without properly conducting the enquiry and without adducing the necessary witnesses and evidence. The impugned punishment order passed on the basis of such enquiry is, therefore, not sustainable in the eyes of law. 5. Mr. The impugned punishment order passed on the basis of such enquiry is, therefore, not sustainable in the eyes of law. 5. Mr. Sudeep Seth, learned counsel appearing for the opposite parties, on the other hand, on the basis of counter affidavit and the documents annexed therein has submitted that the petitioner has been found guilty of serious misconduct of misappropriation and causing loss to the property of ITTUP. He has been given full opportunity in the enquiry proceedings and the entire enquiry proceedings have been completed in presence of the petitioner, he has been given opportunity of cross-examination. It was not necessary to examine Nankau as he was a contractor assigned some work. Nankau himself has admitted his guilt in the fact finding enquiry and he was not available during the course of enquiry. The charges levelled against the petitioner were found proved beyond doubt and the Enquiry Officer has proved the charges levelled against the petitioner. 6. So far as the request for change of Enquiry Officer is concerned, it is submitted by learned counsel for opposite parties that initially K.K. Nagpal, Senior Engineer was appointed as Enquiry Officer to conduct the enquiry against the petitioner, however, due to some official difficulties and in the interest of justice R.S. Saxena, Senior Engineer (Construction) was appointed as Enquiry Officer. The request for change of Enquiry Officer was duly considered by the competent authority and did not find favour. The appeal preferred by the petitioner in this regard was also considered by the Chairman, ITTUP and was rejected. The opposite parties did not find any reason to change the Enquiry Officer. It is submitted that during enquiry proceedings petitioner had denied the charges, hence oral enquiry was held. When the enquiry proceedings were in progress the petitioner requested for postponement of enquiry as his appeal for change of Enquiry Officer was pending. He was asked to cooperate but he refused to cooperate. The petitioner was apprised vide letter dated 17.2.1990 that the appeal preferred by him for change of Enquiry Officer has been rejected by the Chairman. Thereafter, the management representative presented the documentary evidence. The petitioner had refused to receive the same. The statement of Dhirendra Nath, prosecution witness was recorded in presence of the petitioner. The petitioner signed the enquiry proceedings dated 11.4.1990 and statement of Dhirendra Nath. The management representative had cross-examined Dhirendra Nath on 24.4.1990. Thereafter, the management representative presented the documentary evidence. The petitioner had refused to receive the same. The statement of Dhirendra Nath, prosecution witness was recorded in presence of the petitioner. The petitioner signed the enquiry proceedings dated 11.4.1990 and statement of Dhirendra Nath. The management representative had cross-examined Dhirendra Nath on 24.4.1990. It was done in presence of the petitioner. The petitioner was given opportunity to cross-examine the witness but he did not avail and signed the record of the cross-examination. Sri. Dhirendra Nath stated that the petitioner was deputed to coordinate all the affairs of the disposal of the scrap, ensure that contractor collected the scrap, got it weighed and also ensure that the money was deposited with the accounts department and then took the scrap out. On 24.10.1989 it was noticed that weighment of scrap in some plastic bags was not taken into account at the time of weighment and it was also admitted by the petitioner as well as contractor Nankau. 7. The second witness, namely, R.K. Mehra was examined on 26.4.1990. He had narrated the entire incident including the fact that under weighment was reported by some workers at about 3.15 PM and admission of guilt by the petitioner. The petitioner signed the cross-examination record but did not sign the enquiry proceedings. He had also not cross-examined R.K. Mehra. On 15.6.1990, petitioner was asked to provide the list of witnesses and was given opportunity to cross-examine the management witnesses but the petitioner did not cooperate and insisted for providing Chairman's rejection order. The enquiry proceedings were, therefore, concluded. The Enquiry Officer submitted the enquiry report on 26.9.1990. The charges were found proved. It was thereafter that the show cause notice along with enquiry report proposing the punishment of removal was issued. Thereafter, the petitioner has submitted reply to the show cause notice and thereafter the order of punishment of removal dated 03.08.1990 was passed against the petitioner. It is also submitted that Rule 33 of the Rules provides for appeal against the order imposing penalty of removal but the petitioner did not prefer any appeal. 8. Learned counsel for the opposite parties submitted that the petitioner has attained the age of superannuation on 31.12.2007. The enquiry has been conducted in accordance with the Rules. There has been no violation principles of natural justice and petitioner has been afforded reasonable opportunity of hearing. 8. Learned counsel for the opposite parties submitted that the petitioner has attained the age of superannuation on 31.12.2007. The enquiry has been conducted in accordance with the Rules. There has been no violation principles of natural justice and petitioner has been afforded reasonable opportunity of hearing. No prejudice has been caused to petitioner so as to warrant judicial review. The punishment imposed upon the petitioner commensurate with the gravity of the misconduct committed and proved against the petitioner. 9. In support of his submissions, learned counsel for opposite parties relies on the judgments of the Apex Court in the case of B.C. Chaturvedi v. Union of India and others, 1995 (6) SCC 749 and Surendra Kumar v. Union of India and others, 2010 (1) SCC 158 . 10. I have considered the submissions made by learned counsel for the parties and gone through the record. 11. The petitioner was charge-sheeted on the allegation of misconduct of causing loss to the ITTUP. On 24.10.1989, the petitioner was asked to handover steelswarf to the contractor Nankau, after its due weighment at weighment bride so that exact amount as per the agreed rate is accounted for and taken from the contractor and deposited with the Institute before releasing the same to him. The steelswarf loaded in truck no. UTD 9676 was weighed at Dwivedi weighment bridge, Nadarganj, Amausi Industrial Area, Lucknow. It showed the net weight as 15.10. quintals i.e., total weight 70.50 quintals and weight of empty truck 55.40 quintals. At about 3.15 PM it was reported that steelswars in plastic bags loaded in the truck was not taken into account while weighment was being carried out at the weighment bridge and, as such, the net weight of steelswarf shown in the gatepass is less than the actual weight shown so it should be weighed again. The aforesaid truck was taken to same weighment bridge and was re-weighed in the presence of Manager (Administration) and Administrative Officer. After reweighment it was found that net weight of steelswarf was 19.90 quintals instead of 15.10 quintals and it showed that 4.80 quintals of steelswarf was not weighed. 12. In this regard charge-sheet dated 03.11.1989 was sent to the petitioner. He was called upon to explain the differences in the steelswarf. The petitioner was found to have committed deliberate wilful dishonesty and fraud of ITTUP's property for consideration. 12. In this regard charge-sheet dated 03.11.1989 was sent to the petitioner. He was called upon to explain the differences in the steelswarf. The petitioner was found to have committed deliberate wilful dishonesty and fraud of ITTUP's property for consideration. The petitioner being Security Supervisor, instead of keeping vigilance, was indulged in corrupt practices. Vide letter dated 16.11.1989, the petitioner was placed under suspension and Enquiry Officer was appointed. The petitioner had submitted his reply to the charge-sheet on 15.12.1989. Earlier one K.K. Nagpal was appointed as Enquiry Officer but due to some official difficulties he could not continue and, as such, Sri. R.S. Saxena was appointed as Enquiry Officer. The petitioner vide letter dated 04.01.1990 had requested for change of Enquiry Officer. The request of petitioner for change of Enquiry Officer was based on the allegation that Sri. R.S. Saxena is inimical and prejudicial to petitioner. The request for change of Enquiry Officer was considered by the authorities and since it was merely based on apprehensions and there was no evidence to support the apprehension of the petitioner, as such, the request for change of Enquiry Officer was rejected. It was found that Sri. R.S. Saxena is in no way found to be prejudicial to the petitioner, hence his appointment as Enquiry Officer was perfectly justified. The petitioner thereafter had preferred an appeal before the Chairman, ITTUP which too was considered and rejected by the Chairman. In this regard, petitioner was conveyed the decision of the Chairman vide letter dated 17.2.1990 and was asked to cooperate in the enquiry. 13. Learned counsel for petitioner has not been able to establish before the Court as to how and in what manner the Enquiry Officer, Sri. R.S. Saxena was prejudicial to petitioner and why he should have been changed. The request for change of Enquiry Officer was considered by the General Manager (Administration) as well as Chairman, ITTUP who are very senior Officers in the Department and there is no reason to believe that they were in any manner predetermined to harm the petitioner, as such, the contention of learned counsel for the petitioner in this regard has no force and is accordingly rejected. 14. 14. So far as the contention of learned counsel for petitioner that contractor Nankau was not examined in the enquiry, it is to be noted that from the documents on record it is evident that when the matter was reported the statements of Nankau as well as petitioner were recorded by the Administrative Manager, Tool Room, Lucknow on 24.10.1989 Nankau has admitted his guilt and was asked to make good the shortage in the deficiency by paying the amount in this regard and thereafter his truck was released. The petitioner had also admitted the difference in net weight and had also agreed that earlier the weight of steelswarf was 15.10 quintals which was subsequently found to be 19.90 quintals. On the basis of statements of prosecution witnesses and the documentary evidence considered by the Enquiry Officer, it was found that it is not necessary to examine Nankau, Contractor. It is also to be noted that Nankau was not an employee of the department and he was not available during the course of enquiry. 15. I do not find any infirmity in case contractor Nankau was not examined during the enquiry proceedings. The alleged charge of misconduct was found proved against the petitioner on the basis of evidence relied in the enquiry. 16. There is nothing on record to indicate that any procedural irregularity or illegality was committed during the enquiry proceedings; rather the petitioner was provided ample opportunity of defence and enquiry was held as per the Rules. No prejudice has been caused to the petitioner so as to warrant judicial review by this Court. 17. The Apex Court in the case of B.C. Chaturvedi (supra) has held that in the matters relating to departmental enquiry, the scope of judicial review is limited to the extent of determining whether the enquiry was held by a competent officer or whether route of natural justice are complied with or whether the findings are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. The finding must be based on some evidence. When the authority accepts that evidence and conclusion receives support there from, the disciplinary authority is entitled to hold that the delinquent officer is guilty of charge. The finding must be based on some evidence. When the authority accepts that evidence and conclusion receives support there from, the disciplinary authority is entitled to hold that the delinquent officer is guilty of charge. The court/tribunal in its power of judicial review does not act as Appellate Authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The court/tribunal may interfere where the authority held the proceeding against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. The disciplinary authority is a sole judge of facts. Relevant paragraphs 12 and 13 of the judgment on reproduction read as under: “12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. 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. 13. The disciplinary authority is the sole judge of facts. Where appeal is presented. The appellate authority has co-extensive power to re appreciate the evidence or the nature of punishment. In a disciplinary inquiry 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. In Union of India v. H.C. Goel [(1964) 4 SCR 781], this Court held at page 728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.” 18. The Apex Court in the case of Surendra Kumar (supra) has held as under: “8. We are fully convinced that the departmental enquiry was conducted keeping in view the norms of natural justice and fair play. There is nothing on record to suggest that the appellant herein was refused any opportunity to represent himself effectively before the inquiry officer or the appellate authority. In fact the only scope in such cases is to examine the manner in which the departmental enquiry is conducted. We are satisfied with the enquiry in this case.” 19. In view of above, I am of the considered view that there is no infirmity or illegality in the enquiry report as well as the order impugned. 20. In fact the only scope in such cases is to examine the manner in which the departmental enquiry is conducted. We are satisfied with the enquiry in this case.” 19. In view of above, I am of the considered view that there is no infirmity or illegality in the enquiry report as well as the order impugned. 20. The writ petition being devoid of merit is liable to be dismissed. It is accordingly dismissed. Petition dismissed.