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2019 DIGILAW 345 (CAL)

P. Murugeshan v. Union of India

2019-03-11

AMRITA SINHA, ARIJIT BANERJEE

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JUDGMENT : Amrita Sinha, J. 1. Being aggrieved by the judgment and order dated 25th June, 2018 passed by the Central Administrative Tribunal, Calcutta Bench, Circuit Bench at Port Blair in OA No. 500/AN/2017 the petitioner has filed the instant writ application. 2. The brief facts of the case are as follows:- The petitioner is a constable in Indian Reserve Battalion, Andaman & Nicobar Islands. On 06th October, 2012 he along with three other members of the said battalion were caught red handed for indulging in illegal trade of Wild Water Monitor Lizard. All the persons were arrested and a criminal case was registered against them under sections 50/51 of the Wild Life (Protection) Act, 1972 vide Misc. Case No. 107 of 2012. All were sent to judicial custody. 3. The respondent authorities initiated a common proceeding against all the members and issued charge sheet against them. They were charged with the act of illegal trading of Wild Water Monitor Lizard amounting to grave misconduct and gross indiscipline which is in contravention of the mandatory provision under Rule 3 (1)(i), (ii) and (iii) of the Central Civil Services (Conduct) Rules, 1964. 4. A disciplinary proceeding was initiated against all the aforesaid persons and they were tried jointly. The petitioner participated in the said proceeding and preferred to be heard in person. 5. After assessment of evidences the Presenting Officer filed report on 18th March, 2015 that the charges leveled against the charged officers including the petitioner were substantiated. A copy of the inquiry report was forwarded to the petitioner with a direction to submit reply in his defense within seven days. 6. At this juncture the petitioner and the three other members approached the Central Administrative Tribunal, Calcutta Bench by filing separate original applications which were heard analogously and by a common order dated 05th August, 2015 the learned Tribunal dismissed all the applications by granting four weeks' time for giving reply to the inquiry report. 7. Pursuant to the leave granted by the learned Tribunal the petitioner filed his defense before the Commandant, Indian Reserve Battalion. The Commandant being the Disciplinary Authority after appreciation of the evidence came to the finding that the charges leveled against the petitioner stood proved. Members of a disciplined force are to discharge their duties honestly and sincerely. The charged members indulged in criminal activity. The Commandant being the Disciplinary Authority after appreciation of the evidence came to the finding that the charges leveled against the petitioner stood proved. Members of a disciplined force are to discharge their duties honestly and sincerely. The charged members indulged in criminal activity. Showing lenience would set a bad precedent and encourage other members of the battalion in committing such indisciplined acts. Such act of misdemeanor produced undesirable and negative impact on the organization. 8. The Commandant vide an order dated 30th September, 2015 taking into account the otherwise unblemished record of the charged members imposed punishment under Rule 11 of Central Civil Services (Classification, Control and Appeal) Rules, 1965. He imposed the penalty of forfeiture of five years of future increment with cumulative effect for their misconduct and indisciplined act. 9. The petitioner preferred statutory appeal against the order of punishment. The Director General of Police being the Appellate Authority vide order dated 21st January, 2016 rejected the said appeal holding that there was no merit in the case. 10. The Judicial Magistrate First Class, Additional Court, Port Blair vide judgment dated 22nd September, 2016 acquitted the petitioner from the criminal case. The learned Court observed that the ingredients of hunting or trade or business of wild animals are not established in this case beyond reasonable doubt. 11. Armed with the aforesaid order of acquittal the petitioner made a representation before the Director General of Police on 27th September, 2016 praying for exonerating him from the punishment imposed upon him. 12. The Commandant vide a memorandum dated 14th October, 2016 informed the petitioner that the outcome of the criminal case has no bearing upon the disciplinary proceeding which was on a different footing and had already been completed. The prayer of the petitioner for exoneration was rejected. 13. Challenging the said rejection the petitioner filed an application before the Central Administrative Tribunal, Calcutta, Circuit Bench at Port Blair being OA No. 500/AN/2017 which was heard and dismissed by the learned Tribunal on 25th June, 2018 being devoid of merit. 14. The said order dated 25th June 2018 is impugned herein. 15. 13. Challenging the said rejection the petitioner filed an application before the Central Administrative Tribunal, Calcutta, Circuit Bench at Port Blair being OA No. 500/AN/2017 which was heard and dismissed by the learned Tribunal on 25th June, 2018 being devoid of merit. 14. The said order dated 25th June 2018 is impugned herein. 15. The sheet anchor of the case of the petitioner is that as the criminal case and the departmental proceeding proceeded upon the self same facts and the witnesses in the criminal case as well as the disciplinary proceeding were exactly the same, the petitioner being acquitted from the criminal case is liable to be exonerated from the punishment imposed in the departmental proceeding. Learned counsel submits that the petitioner prayed for revising the order of punishment after being acquitted from the criminal case by filing representation before the Director General of Police. The said representation of the petitioner was not considered by the Director General of Police but was considered by the Commandant being the Disciplinary Authority. 16. He submits that the Commandant exercised his jurisdiction wrongfully and rejected the prayer of the petitioner mechanically without proper application of mind. The Commandant did not have the power of revision and the same is vested with the Director General of Police before whom the petitioner made the representation. He further submits that the learned Tribunal without considering the case of the petitioner in the right perspective dismissed the same. He prays for setting aside the order of the learned Tribunal and to remand the matter back to the Director General of Police for reconsideration of his prayer for exoneration on the ground of his acquittal from the criminal case. 17. The learned advocate relies heavily upon the decision rendered by the Hon'ble Supreme Court of India in the case of G.M. Tank vs. State of Gujarat and another reported in (2006) 5 SCC 446 wherein the Court held that if the departmental proceeding and the criminal case are based on identical and similar set of facts and the charge in the departmental case and the charge before the criminal Court are one and same then it would be unjust and unfair and rather oppressive to allow the findings recorded in the departmental proceeding to stand. 18. 18. He also relied upon an unreported order dated 06th February, 2019 passed by the High Court of Calcutta, Circuit Bench at Port Blair in WPCT No. 274 of 2018 (Lieutenant Governor and others vs. Shri Etwa Ekka). 19. The learned advocate appearing on behalf of the respondent authorities submits that the scope and power of judicial review in matters arising out of disciplinary proceeding is extremely limited. There is absolutely no scope for re-appreciation of evidence. The provision for revision was not applicable in the instant case. Acquittal from the criminal case does not ipso facto confer any right upon the charged member for exoneration from punishment. Principles of natural justice were strictly followed. There was no procedural infirmity while conducting the disciplinary proceeding. The petitioner was caught red handed. Three Wild Water Monitor Lizards were recovered from the possession of the charged members. There is no illegality in the order impugned. The writ petition is liable to be dismissed. 20. The learned advocate relied on the following judgments in support of his case. (1) B.C. Chaturvedi vs. Union of India and others Constitutional Bench judgment reported in (1995) 6 SCC 749 (paragraphs 12 and 13). (2) Union of India and another vs. Bihari Lal Sidhana reported in (1997) 4 SCC 385 (paragraph 5). (3) Deputy Inspector General of Police and another vs. S. Samuthiram reported in (2013) 1 SCC 598 (paragraph 26). (4) Commissioner of Police, New Delhi and another vs. Mehar Singh reported in (2013) 7 SCC 685 (paragraph 24). (5) Baljinder Pal Kaur vs. State of Punjab and others reported in (2016) 1 SCC 671 (paragraphs 10, 11, 12 and 13). 21. After hearing the submissions made on behalf of both the parties and upon perusal of the documents annexed to the writ petition it appears that the petitioner along with others were caught red handed in the act of illegal trading of Wild Water Monitor Lizards. Three live animals were recovered from their possession. The petitioner being a member of the disciplined force was charged with grave misconduct and gross indiscipline. 22. The fact that the petitioner was arrested and a criminal case was lodged against him is a completely different matter. Assuming that the criminal case was not initiated against the petitioner even then the charge of grave misconduct and gross indiscipline was maintainable against him. 22. The fact that the petitioner was arrested and a criminal case was lodged against him is a completely different matter. Assuming that the criminal case was not initiated against the petitioner even then the charge of grave misconduct and gross indiscipline was maintainable against him. The disciplinary proceeding proceeded for 'grave misconduct' and 'gross indiscipline' under Rule 3 (1)(i), (ii) and (iii) of CCS (Conduct) Rules, 1964. 23. The said Rule reads as under:- 3(1) Every Government servant shall at all times - (i) maintain absolute integrity; (ii) maintain devotion to duty and (iii) do nothing which is unbecoming of a Government servant. 24. Section 50 of the Wild Life (Protection) Act, 1972 deals with the power of entry, search, arrest and detention and Section 51 lays down the penalties on contravention of the provisions of the Act. 25. The two proceedings may have arisen from a single incident but the charges were different. They had to be dealt with differently. Line of action in both the proceedings were completely different. They operated in two different fields. Had the petitioner been aggrieved by the order of the Appellate Authority he could have filed application for revision of the same, which he didn't. The petitioner accepted the order passed by the Appellate Authority. The moment the petitioner accepted the order of the Appellate Authority the disciplinary proceeding came to an end. The order attained finality. 26. Suppose, instead of being acquitted the petitioner would have been convicted in the criminal case, then would that conviction have any impact upon the departmental proceeding which was long over? The answer is no. Similarly, the order of acquittal in the criminal case will also not have any bearing on the order passed in the departmental proceeding. 27. The petitioner filed an application for revision of the order passed by the Appellate Authority solely on the ground of his acquittal from the criminal case. The statute does not provide for the same. 28. On judicial review of the order it appears that the petitioner was given a fair chance to defend himself which he availed. There does not appear to be any procedural infirmity or irregularity in conducting the departmental proceeding. The Disciplinary Authority upon perusal of the facts and the evidences adduced at the time of inquiry came to a finding that the charges leveled against the petitioner were proved. There does not appear to be any procedural infirmity or irregularity in conducting the departmental proceeding. The Disciplinary Authority upon perusal of the facts and the evidences adduced at the time of inquiry came to a finding that the charges leveled against the petitioner were proved. The Appellate Authority affirmed the order of penalty imposed by the Disciplinary Authority. The fact of acquittal of the petitioner from the criminal case is not a ground for revising the order passed by the Disciplinary Authority. The learned Tribunal has rightly rejected the prayer of the petitioner. 29. In the case of Etwa Ekka (supra) the learned Court observed that it is elementary that acquittal in criminal proceeding does not prevent the employer to proceed with the departmental proceeding. In the said case the learned Court took notice of the fact that the prosecutrix became hostile during the trial and accordingly the prosecution had failed to prove the case. On the said fact the High Court directed the appellants to act in terms of the order passed by the learned Tribunal mainly because the complaint related to sexual offences and the Administration neither had the expertise nor the mechanism to prove the same. The facts of the case referred by the petitioner are completely different from the facts of the instant case in so far as the charge against the petitioner in the departmental proceeding was of grave misconduct and gross indiscipline. 30. In the case of G.M. Tank (supra) the charge and evidence in the criminal case and the departmental proceeding were exactly the same. In the instant case the petitioner was prosecuted under sections 50/51 of the Wild Life (Protection) Act, 1972 in the Criminal Court whereas the petitioner was charged with the offence of grave misconduct and gross indiscipline in the departmental proceeding. The charges being different, the principle laid down in the case of G.M. Tank (supra) is not applicable in the instant case. 31. In the case of Baljinder Pal Kaur (supra) the Hon'ble Supreme Court followed the principle laid down in the cases of Mehar Singh (supra), S. Samuthiram (supra) and Biharilal Sidhana (supra) and declined to interfere with the order of dismissal from service on the basis of the evidence recorded in the departmental inquiry. 32. 31. In the case of Baljinder Pal Kaur (supra) the Hon'ble Supreme Court followed the principle laid down in the cases of Mehar Singh (supra), S. Samuthiram (supra) and Biharilal Sidhana (supra) and declined to interfere with the order of dismissal from service on the basis of the evidence recorded in the departmental inquiry. 32. In the case of B.C. Chaturvedi (supra) a Constitution Bench comprising of three judges of the Hon'ble Supreme Court held that the disciplinary authority is the sole judge of the fact. Where appeal is presented the Appellate Authority has coextensive power to re-appreciate the evidence or the nature of punishment. Judicial review is not an appeal. It is meant to ensure that the individual received fair treatment and not to ensure that the conclusion which the authority reached is necessarily correct in the eye of Court. When the inquiry is conducted on the charges of misconduct, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. The Court/Tribunal does not act as Appellate Authority to re-appreciate the evidence and arrive at its own independent finding on the evidence. The Court may interfere where the authority held the proceeding in a manner inconsistent with the rule of natural justice or in violation of statutory rules. 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. The Court further held that only when the punishment/penalty awarded shocks the judicial conscience of the Court the relief may be moulded i.e. a writ Court's interference is permissible only when the punishment/penalty is shockingly disproportionate. In the instant case the petitioner was imposed with penalty of forfeiture of five years of future increment with cumulative effect. 33. We feel that the learned Tribunal rightly observed that the punishment imposed is not disproportionate to the gravity of the offence. The Tribunal rightly observed that instead of showing gratitude to the department for not removing him from service the petitioner has unnecessarily dragged the department into a series of litigations. 34. We do not find any illegality in the order passed by the learned Tribunal. The Tribunal rightly observed that instead of showing gratitude to the department for not removing him from service the petitioner has unnecessarily dragged the department into a series of litigations. 34. We do not find any illegality in the order passed by the learned Tribunal. Following the ratio laid down by the Hon'ble Supreme Court in the aforesaid cases we do not find any reason to interfere in the instant case. 35. WPCT 243 of 2018 stands dismissed. 36. There will however, be no order as to costs.