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2017 DIGILAW 938 (ORI)

Ramesh Dunguri v. Union of India

2017-08-28

SUJIT NARAYAN PRASAD

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JUDGMENT : S. N. Prasad, J. This writ petition is for quashing the order dtd.18th November, 1993 passed by the Commandant, Disciplinary Authority whereby and where under the punishment of removal from service with immediate effect has been imposed and the period spent on suspension w.e.f.14.6.1993 to 12.07.1993 is confirmed with a direction that he will not get anything more that ever he has already received as SA/DA, the Appellate Order dtd.2nd August, 1994 and the Revisional order dtd.20th November, 2007 by which the order passed by the Disciplinary Authority has been confirmed. 2. The brief fact of the case is that the petitioner who was working as Sweeper in Central Industrial Security Force has departmentally been proceeded vide serving memo of charge on 13th July, 1993 leveling therein the allegation that on 9.6.1993 he took Pritisini Gouri, daughter of Sweeper D.G. Bag without informing Sweeper D.G. Bagh and kept in his brother’s house and on 10.6.1993 when Sweeper D.G. Bag came to his house located at Harijan Basti, Plant site Road, Rourkela, he attacked him with deadly weapons causing head injury to him. The petitioner has denied the charges and accordingly a regular enquiry has been directed to be conducted by issuing direction upon the petitioner to participate in the enquiry by putting his appearance before the inquiry officer. The petitioner has appeared before the inquiry officer and the inquiry officer found the charges proved against him which has been accepted by the disciplinary authority by imposing punishment of removal from service with immediate effect. The petitioner has approached before the appellate authority wherein the order of the disciplinary authority has been confirmed against which revision has been preferred but the same has also been rejected. The petitioner is before this court by way of this writ petition challenging the order passed by the disciplinary authority, appellate authority and the revisional authority on the ground that the petitioner has not been provided with adequate opportunity of defending himself, the nature of allegation is not so serious warranting him for removal from service. 3. The petitioner is before this court by way of this writ petition challenging the order passed by the disciplinary authority, appellate authority and the revisional authority on the ground that the petitioner has not been provided with adequate opportunity of defending himself, the nature of allegation is not so serious warranting him for removal from service. 3. Learned counsel for the petitioner has submitted putting reliance upon the enquiry report that even the daughter of the complainant has submitted that she, on her own will, is living with the petitioner but the inquiry officer has not appreciated this aspect of the matter, as such the order of removal is not sustainable in the eye of law. 4. Per contra learned counsel for opposite parties, rebutting the argument advanced on behalf of the petitioner has submitted that there is no procedural defect. The petitioner has been provided with all due opportunity of being heard since he has not raised any grievance regarding procedural irregularity or violation of principle of natural justice. He submits that the petitioner even though a married public servant, has kept the daughter of his co-employee D.G. Bagh in his house and when the same has been asked by him, in retaliation Mr. Bagh was assaulted by him which is unbecoming on the part of a public servant, that too in discipline force like Central Industrial Security Force. He submits that there is three concurrent findings of the authorities, as such this court may not interfere with the finding of fact by assuming the power of appellate court. 5. This court has heard the learned counsels for the parties and perused the documents available on record. The petitioner who was working as Sweeper in the Central Industrial Security Force in the unit situated at Rourkela steel plant in the state of Odisha was put under suspension in contemplation of a departmental proceeding on the allegation of kidnapping the daughter of a co-employee working along with him as also on the allegation of assault upon the co-employee, namely, D.C. Bagh who happens to be the father of the girl who has been kidnapped by the petitioner and kept in his house in the capacity of his wife while he was already married having two daughters. The petitioner has been served with the memorandum of charge which are as follows:- (i) On 9.6.1993 at about 21.00 hours he took Pritisini Gouri, D/o. Sweeper D.G. Bag without informing Sweeper D. G. bagh and kept in his brother’s house. (ii) On 10.6.1993 at about 14.00 hours when Sweeper D.G. bagh came to his house located at Harijan Basti, Plant Site Road, Rourkela, he attacked him with deadly weapons causing head injury to him. The petitioner has defended himself by denying the allegation and has submitted that there is no fault on his part, rather the daughter of Sweeper D.G. Bagh, on her own wish, has come to his house and started residing, this statement has been given by the girl before the inquiry officer, as such the very charge leveled against him regarding kidnapping is not said to be proved, but the inquiry officer, ignoring this aspect of the matter, has found the charge proved. This court has perused the record of departmental proceeding as also the allegation leveled against him. This court has also gone into the statement of complainant D.G. Bagh, the father of the girl who has deposed before the inquiry officer that his daughter is missing from house, he tried his level best to search out his missing daughter in nearby places and in relationship but failed to do so. The next day, i.e. 10.6.1993 he again tried to search out his daughter but he noticed that the petitioner, in intoxication was uttering the word “LADKI MERE PAS HAI JO CHAHO KARLO”. The father of the girl has put a question to him regarding whereabout of his daughter but instead of saying this, the petitioner started assaulting him. This court has also perused the statement of the girl, namely, Kumari Pritisini that she was living in the house of the petitioner as his wife according to her wish. The inquiry officer, after going through the materials available on record, has given its finding by making observation in the enquiry report that although the father of the girl and the petitioner had assaulted each other but has came to finding that the girl, namely Pritisini was in the custody of the petitioner and when her father asked regarding where about of his daughter, assault has been given to him which led the complainant D.G. Bagh to assault the petitioner in retaliation. The inquiry officer has come to definite finding that scuffle started due to kidnapping of Pritisini and keeping her as a wife without marriage whereas he already keeping his wife and three daughters and being a member of disciplined Armed Force he should not do all these things and by doing this the image of the disciplined force like Central Industrial Security Force has been defamed, accordingly found the charge proved. According to the conscious view of this court, a member of disciplined force is supposed to behave like a disciplined man in order to pass on message upon the civilians regarding devotion in duty, integrity and behave like a member of disciplined force, but the petitioner who was working as a Sweeper has found to be indulged in keeping the daughter of Mr. D.G. Bagh in his house in the capacity of his wife even though the girl on her own wish has come to his residence, but that does not mean that he will start keeping her in his house in the capacity of wife, rather his duty should have been to convince that girl and sent her back to his residence, but he has not done this, rather he has also concealed the fact from his father which resulted to assault in between the father of the girl and the petitioner, hence the incident took place due to the conduct of the petitioner which is serious in nature since keeping the daughter of a counterpart who is living in the neighbor in the capacity of his wife, that too when the employee is married one, cannot be said to be proper, hence according to the considered view of this court, the finding arrived at by the inquiry officer cannot be said to be improper. The disciplinary authority, after going through the inquiry report, having been accepted it and by following due procedure, has inflicted the punishment of removal from service taking into consideration serious nature of allegation as discussed above. The petitioner has approached the appellate authority and the appellate authority, after taking into consideration the facts in detail, has rejected the appeal by confirming the order passed by the disciplinary authority. The petitioner has approached the remedy of revision as provided under the statute but the revisional authority has also approved the order passed by the authority. The petitioner has approached the appellate authority and the appellate authority, after taking into consideration the facts in detail, has rejected the appeal by confirming the order passed by the disciplinary authority. The petitioner has approached the remedy of revision as provided under the statute but the revisional authority has also approved the order passed by the authority. In this way there is three concurrent finding of the statutory authorities based upon the finding given by inquiry officer. This court is considering the legality and propriety of the order in exercise of power of judicial review in the fact finding arrived at in the disciplinary proceeding, but it is settled that finding of the disciplinary authority cannot be interfered in each and every case, rather the situation as has been reflected by the Hon’ble Apex Court in the case of Union of India & Ors. Vrs. P. Gunasekaran, reported in (2015) 2 SCC 610 wherein Hon’ble Apex Court has been pleased to hold as follows:- “12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the inquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether: (a) The inquiry is held by a competent authority; (b) The inquiry is held according to the procedure prescribed in that behalf; (c) There is violation of the principles of natural justice in conducting the proceedings; (d) The authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; (e) The authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; (f) The conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; (g) The disciplinary authority had erroneously failed to admit the admissible and material evidence; (h) The disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; 13.(i) the finding of fact is based on no evidence. 13. Under Article 226/227 of the Constitution of India, the High Court shall not: (i) re-appreciate the evidence; (ii) interfere with the conclusions in the inquiry, in case the same has been conducted in accordance with law; (iii) go into the adequacy of the evidence; (iv) go into the reliability of the evidence; (v) interfere, if there be some legal evidence on which findings can be based. (vi) correct the error of fact however grave it may appear to be; (vii) go into the proportionality of punishment unless it shocks its conscience.” 6. This court has examined the fact of the case in hand in order to exercise its powers of judicial review but according to its considered view the fact of the case is not coming in the hand where the power conferred to this court under Art.226/227 of the constitution of India may be exercised since the inquiry is held by the competent authority, according to the procedure prescribed, there is no violation of principle of natural justice in conducting the proceeding, the authorities have reached to the fair conclusion, the authorities have not influenced by irrelevant or extraneous consideration, the conclusion, on the very face of it is not arbitrary and capricious. In the light of this situation, this court sitting under Article 226 and 227 of the constitution of India will not exercise its power to re-appreciate the evidence, to interfere with the conclusion in the inquiry, go into the adequacy of the evidence, go into the reliability of the evidence and correct the error or fact and the punishment is commensurate with the nature of allegation leveled against the petitioner. Accordingly, in view of the settled proposition as has been settled by Hon’ble Apex Court, as has been reflected herein above, according to conscious view of this court, it is not a case where the extraordinary power conferred to this court under Article 226 and 227 is to be exercised. In view thereof there is no merit in this writ petition. In the result, writ petition stands dismissed.