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2018 DIGILAW 959 (JHR)

Vijay Kumar v. Inspector General, Cisf, Patna

2018-04-30

SHREE CHANDRASHEKHAR

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JUDGMENT Shree Chandrashekhar, J. - The petitioner is aggrieved of the punishment order, dated 04.03.2011 by which he has suffered penalty of reduction in pay-scale from Rs. 8210/- + Rs. 2400/- (BP+GP) to Rs. 7900/- + Rs. 2400/- (BP+GP) in the pay-band for one year which would have effect on his future increment, the appellate order dated 06.06.2011 and the revisional order dated 03.11.2011 by which the penalty order dated 04.03.2011 has been affirmed. 2. The petitioner was served a charge-memo on 04.08.2010; first charge pertains to failure of the petitioner to prevent theft of 36 pieces iron railway-crossing slippers on 19.07.2010 between 21:00 hrs to 05:00 hrs on 20.07.2010 and the second charge was in relation to his previous misconduct. The petitioner submitted his reply on 18.08.2010 denying the aforesaid charges. In the enquiry proceeding as many as seven witnesses were examined by the department. The petitioner has also examined one witness in his defence. After the enquiry report was submitted on 21.02.2011 a second show-cause notice was issued to him to which the petitioner replied on 02.03.2011. When he suffered the aforesaid penalty by an order, dated 04.03.2011 the petitioner preferred an appeal which has been dismissed by an order dated 06.06.2011. Thereafter revision petition filed by the petitioner was also dismissed on 03.11.2011. 3. Contending that the enquiry officer has held that theft did not occur within the petitioner''s area under patrolling and the prosecution witnesses have also not given the exact place of occurrence, Mr. Kumar Vaibhav, the learned counsel for the petitioner, submits that on mere hypothesis a delinquent cannot be inflicted major penalty. As against the above, Mrs. Nitu Sinha, the learned counsel for the respondents, submits that the petitioner, who was afforded sufficient opportunity to defend himself during the enquiry proceeding, cannot challenge the penalty order on the ground that the charges levelled against him have not been proved to the hilt. 4. Test in the departmental enquiry is preponderance of probability and not beyond all shadows of reasonable doubt. In Syed Yakoob v. K.S. Radhakrishnan & Ors. , (1964) AIR SC 477 power of judicial review of the writ Court under Article 226 of the Constitution of India to issue a writ of certiorari has been discussed by the Supreme Court. 4. Test in the departmental enquiry is preponderance of probability and not beyond all shadows of reasonable doubt. In Syed Yakoob v. K.S. Radhakrishnan & Ors. , (1964) AIR SC 477 power of judicial review of the writ Court under Article 226 of the Constitution of India to issue a writ of certiorari has been discussed by the Supreme Court. It has been held that only in cases where penalty has been inflicted upon the delinquent either in breach of the rules of natural justice or in breach of the extant rules, a writ of certiorari shall lie. Another ground on which the writ Court may exercise its power of judicial review is where order of punishment is found in complete defiance of logic Ranjit Thakur v. Union of India & Ors. , (1987) 4 SCC 611 . During the departmental enquiry, the delinquent-petitioner put specific questions to the witnesses examined by the department on the area of supervision within his jurisdiction. All the witnesses have deposed that the place of occurrence was about 10 to 20 metres from the point till where the petitioner had the duty of supervision. In such facts, the enquiring officer has recorded a finding that the occurrence has not taken place within the area of supervision of the petitioner. No doubt, the defence-witness has stated that the occurrence took place about 150 metres away from the area within the jurisdiction of the petitioner, when the department has been able to prove that theft has occurred between 09:00 p.m. to 05:00 a.m. in the morning and during this period the petitioner was on duty, findings recorded by the enquiring officer on the charges levelled against the petitioner cannot be doubted. The enquiring office has found both the charges proved. Based on the enquiry report dated 21.02.2011 and the reply of the petitioner to the second show-cause notice in which the petitioner has again reiterated his stand, that the charges were vague and the alleged occurrence either did not take place or if at all has taken place it did not happen within his jurisdiction, the disciplinary-authority has rightly passed the punishment order, dated 04.03.2011. On the proved charge of misconduct, it cannot be held that penalty of reduction in pay-scale for one year inflicted upon the petitioner is grossly disproportionate to the charges framed and found proved. On the proved charge of misconduct, it cannot be held that penalty of reduction in pay-scale for one year inflicted upon the petitioner is grossly disproportionate to the charges framed and found proved. The appellate order records the grounds urged by the petitioner and cross-examination of the witnesses by him. There is concurrent findings of fact by three authorities on theft of 36 pieces of iron railway-crossing slippers. Evidently, it was not a mere possibility on the basis of which the order of punishment has been passed. The petitioner having failed to prevent theft of the iron railway-crossing slippers, on the basis of preponderance of probability has suffered the aforesaid penalty. 5. Finding no substance in challenge to the orders dated 04.03.2011, 06.06.2011 and 03.11.2011, the writ petition is dismissed.