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2020 DIGILAW 24 (ORI)

Sashadhar Pradhan v. Union Of India

2020-01-28

BISWANATH RATH

body2020
JUDGMENT Biswanath Rath, J. - This writ petition involves a challenge by the petitioner, the delinquent to the impugned order under Annexure-8 being passed by the Disciplinary Authority involving a disciplinary proceeding initiated against the petitioner. 2. Heard Dr.Chitta Ranjan Misra, learned counsel for the petitioner and Mr.Gyanaloka Mohanty, learned Central Government Counsel appearing for the opposite party nos.1 to 4. 3. Short background involving the case of the petitioner is that petitioner was working as an Inspector/Exe. under the Central Industrial Security Force (in short 'CISF') bearing Force No.813440019. He was posted in CISF UnitCCWO, Dhanbad was deputed to Central Bureau of Investigation (in short 'CBI'), Orissa. After completion of deputation, he was repatriated back to parent department, i.e. CISF. Pursuant to return back to CISF, the Disciplinary Authority, opposite party no.4 issued memorandum of article of charges against the petitioner along with imputation of misconduct vide memorandum dtd.26.02.2005. Following receipt of Memorandum of Article of charges, petitioner submitted his explanation to the authority denying all the allegations claimed to be false and baseless. Disciplinary Authority not being satisfied with the explanation submitted by the petitioner directed for conducting an enquiry and appointed an Enquiry Officer. Enquiry was conducted involving the petitioner. It is claimed that during enquiry proceeding, petitioner, the delinquent though requested the Enquiry Officer and the Disciplinary Authority to have the polygraph/voice test of the petitioner to prove his innocence for being falsely implicated by the CBI. Petitioner claims that the Disciplinary Authority unfortunately turned down the request of the petitioner. It is further alleged that the Enquiry Officer after conclusion of enquiry submitted his enquiry report, vide Annexure-5 to the Disciplinary Authority indicating therein that the charges framed against the petitioner have not been proved, however, the Disciplinary Authority on consideration of the report did not agree with the findings and the recommendation of the Enquiry Officer and accordingly sent a show-cause notice to the petitioner the delinquent along with its disagreement note and also the copy of the report of the Enquiry Officer thereby asking the delinquent to submit his response within a period of fifteen days, as appearing at Annexure-6. The Disciplinary Authority not being satisfied with the written reply held the delinquent guilty of article of charges as the charged member the delinquent and under the premises in so far as Charge No.1, the delinquent committed gross-misconduct by demanding and accepting bribe being a public servant from a civilian, who was arrested by C.B.I:SPE, Bhubaneswar and remaining under judicial custody. Accordingly, in exercise of power conferred upon him under Rule 32(1) read with Schedule-I and Rule-36 of CISF Rules, 2001 imposed penalty of compulsory retirement from service with a further direction that the delinquent will be entitled to 80% of pension and gratuity as admissible to him on the date of his compulsory retirement as per Rule-40 of CCS (Pension Rule), 1972, vide Annexure-8. 4. Being aggrieved by the final order of punishment of the Disciplinary Authority, petitioner preferred appeal, vide Annexure-9. The appeal at the instance of the petitioner was rejected by the Appellate Authority on 10/11.08.2006, vide Annexure-10. Petitioner accordingly filed revision, vide Annexure-11, as provided under the Service Rules, which was also rejected by the Revisional Authority on 30.03.2007, vide Annexure-12. Assailing the order of the Disciplinary Authority, Dr.Misra, learned counsel for the petitioner contended that there has been violation of principal of natural justice involving the disciplinary proceeding involving the petitioner inasmuch as for involvement of consideration of tape recorded evidence is a vital piece of evidence, such document should have been put to test by competent authority to find out the genuineness of the same. Leaned counsel for the petitioner alleged that since the Enquiry Officer did not suo-motu take any action, petitioner, the delinquent was compelled to make a written request for at least having a polygraph test of the voice through a competent agency, which has been illegally rejected. Dr. Misra, learned counsel for the petitioner also challenged the impugned order passed by the Disciplinary Authority on the ground of violation of natural justice to the extent that once the Disciplinary Authority differs from the view of the Enquiry Officer while providing opportunity to show-cause incorporating therein the dissenting note, the Disciplinary Authority should have also given an opportunity of hearing to the delinquent. Dr. Misra also assails the impugned order on the premises that when the Disciplinary Authority involves a complaint in the minimum, the complainant should have been examined as a witness from the prosecution side. Dr. Dr. Misra also assails the impugned order on the premises that when the Disciplinary Authority involves a complaint in the minimum, the complainant should have been examined as a witness from the prosecution side. Dr. Misra claimed that failure of such examination vitiates the entire proceeding. Dr. Misra also challenged the impugned order on the premises that when prosecution listed 24 witnesses, examination of 19 witnesses and not examining the rest of the witnesses also makes the enquiry fatal keeping in view that the witnesses not examined are the vital witnesses. Dr. Misra thus contended that for not having the polygraph/voice test, for not examining the vital witnesses, such as the complainant and further not providing opportunity of hearing to the complainant and further the Disciplinary Authority differing from the Enquiry Officer report and further in absence of proof of the material evidence relied upon and depended by the prosecution through appropriate witnesses, further withholding many of the vital witnesses, the entire enquiry suffers. Dr.Misra also assailed the action of the Disciplinary Authority on the premises that since the alleged misconduct was relating to the service of the petitioner while he was on deputation to C.B.I. It is the C.B.I. who alone has the power to punish the petitioner in the capacity of the Appointing Authority as well as Disciplinary Authority. The conducting officer of the Disciplinary Authority by any other authority makes the entire disciplinary proceeding otherwise bad. Dr. Misra, learned counsel for the petitioner also taking to the discussion of the Enquiry Officer on evidence and the conclusions thereunder by the Enquiry Officer submitted that for the evidence available on record, there was no scope for differing from the view of the Enquiry Officer by the Disciplinary Authority. Dr. Misra thus prayed this Court for interfering in the impugned order and also requested for grant of appropriate relief by this Court. 5. Mr.Gyanaloka Mohanty, learned Central Government Counsel appearing for the opposite parties while opposing each of the grounds taken by the petitioner taking this Court to the evidence so recorded giving the dissenting view by the Disciplinary Authority and the reasons of the Disciplinary Authority in passing the order of punishment submitted that the reason of the Disciplinary Authority is based on sufficient material available on record. Mr.Mohanty on the question of natural justice being violated submits that so far as the petitioner's allegation that there has been non-examination of the complainant referring through the evidence of prosecution witnesses, particularly P.Ws.1 and 2 contended that the complainant having already been examined during the preliminary enquiry and establishment of such statement through the prosecution witness, the allegation of violation of natural justice on this count becomes redundant. So far as allegation of violation of natural justice for no polygraph/voice test being allowed in spite of request by the delinquent. Mr. Mohanty, learned counsel appearing for the opposite parties contended that for sufficient material both oral and documentary evidence to establish charge against the delinquent through official witness, there is right rejection of the request of the petitioner by the Enquiry Officer as well as the Disciplinary Authority. On the allegation of withholding of vital witnesses also makes the enquiry fatal, Mr. Mohanty, learned counsel for the contesting opposite parties contended that for examination of number of prosecution witnesses, nonexamination of the four witnesses named therein remain immaterial. Mr. Mohanty also contested the allegation of the petitioner on this count on the premises that some of the witness did not turn up in spite of the best effort of the Enquiry Officer and the Disciplinary Authority. Therefore, there is no scope otherwise for the prosecution to bring them to the dock. Mr.Mohanty, learned Central Government Counsel appearing for the opposite parties contended that for clear evidence through the prosecution witnesses supporting the case of the prosecution, more particularly, the witnesses referring to the statement of PWs.1 to 19 attempted to establish the case of the establishment. It is in the above premises and for sufficient material available to establish a clear case of major misconduct on the part of the delinquent, Mr.Mohanty submitted that not only there is no infirmity in the order passed by the Disciplinary Authority but there is also no infirmity in either of the orders of the Appellate Authority or the Revisional Authority. Mr. Mohanty accordingly claimed for rejection of the writ petition for having no material. 6. Mr. Mohanty accordingly claimed for rejection of the writ petition for having no material. 6. Considering the rival contentions of the parties, this Court before going to consider the following questions to have a just decision:- (A) As to whether the alleged offence being committed by the delinquent while working as an officer in the C.B.I. establishment, the framing of charge and the enquiry conducted by the Office of the Deputy Inspector General, CISF Unit, BCCL, Dhanbad is proper or not? (B) For non-examination of the complainant involving such serious allegation whether vitiates the disciplinary proceeding? (C) Further not conducting the polygraph test involving the voice of the delinquent for the nature of allegation involved herein if vitiates the enquiry? 7. Considering the rival contentions of the parties, this Court finds the admitted fact remains under the direction of the Assistant Inspector General/ESTT, the petitioner Sashadhara Pradhan working in the establishment of CISF Employment No.813440019 in the Head Quarter at Chennai was deputed to work under S.P./C.B.I./A.C.B., Ranchi. While working under the C.B.I., the service condition of the delinquent was governed by the standard norms of deputation as contained in DP&T OM No.2 29 91-Estt (Pay II) dated 08.01.2004 and as amended from time to time. He was directed to work there for a period of five years. The further admitted fact remains that the petitioner while working under the C.B.I. establishment on deputation was relieved from service with effect from 07.05.2004 (A/N) on repatriation to his parent department, i.e. CISF. It is also admitted that the disciplinary proceeding involving the petitioner was undertaken by the Deputy Inspector General, CISF. Statement of recall of charge framed against the petitioner reads as follows: "That No.813440019 Inspector/Exe S D Pradhan of CISF Unit CCWO Dhanbad while posted and functioning as Inspector CBI Bhubaneswar during deputation in the year 2004 committed gross misconduct in as much as he being a public servant had demanded and accepted a sum of Rs.1,50,000/- from Shri Amaresh Patnaik, elder brother of Shri Subrat Patnaik @ Subha Patnaik who was arrested and put under judicial custody in CBI, SPE Bhubaneswar Case No.RC-04(A)/2004 since 23.01.2004, in order to facilitate immediate release of Shri Subha Patnaik from judicial custody on bail and to ensure that he would not be charge-sheeted in the case. That after release of Shri Subha Patnaik on bail, after staying till 25.02.2004 under judicial custody, and on the insistence of Sri Subha Patnaik, Insp/Exe S.D. Pradhan returned a sum of Rs.1,10,000/- in two instalments of Rs.70,000/- on 08.03.2004 and Rs.40,000/- in the last week of April' 2004. That, said Insp/Exe S.D.Pradhan, by the aforesaid commission failed to maintain absolute integrity and acted in a manner unbecoming of a public servant and prejudicial to the interest of the Govt." 8. The recall of charge relates to allegation involving the delinquent while functioning as Inspector, C.B.I., Bhubaneswar, as a deputationist committed gross misconduct. For the application of service condition, the office memorandum is in operation, in support of decision of Hon'ble Apex Court in the case of Khemi Ram Vrs. The State of Punjab, (1976) AIR SC 1737 , this Court finds Question (A) is to be answered against the petitioner and the initiation of proceeding by parent department remains valid. 9. Coming to the Question (B), non-examination of vital witness if it vitiates the enquiry? This Court reading through the enquiry report finds admittedly the complainant, namely, Subha Patnaik has not been examined in the enquiry proceeding. This Court however finds Subha Patnaik, the complainant, who was examined during the preliminary enquiry, the statement of complainant produced as Ext.18 being introduced by P.W.9 clearly borne out from the discussion in paragraph-B running page 52-54 of the brief. Taking into consideration the evidence involving the same, this Court finds the Enquiry Officer has the following observation: ii) The statements of Sh.Subha Pattnaik, Shri. Amaresh Pattnaik, Sh. Ranjit Patra and Sh. Debi Prasad Pattnaik produced as Exhibits-18, 19, 20 and 21 respectively by PW-09. Shri. R.N.Tripathy Insp. CBI (P.E.O.) and recorded during course of P.E. by the P.E.O. are not signed by the said witnesses. As per laid down procedure of law, the statements of the witnesses recorded during course of P.E. are necessarily required to be duly signed by the witnesses concerned and the P.E.O. will authenticate those statements. But the statements of the above said 04 Nos. of witnesses produced as Exhibits-18, 19, 20 and 21 have not been signed by the witnesses concerned. These statements produced as Exhibits only bears the sig. of P.E.O. Mr. R.N. Tripathy. None of the said 04 Nos. But the statements of the above said 04 Nos. of witnesses produced as Exhibits-18, 19, 20 and 21 have not been signed by the witnesses concerned. These statements produced as Exhibits only bears the sig. of P.E.O. Mr. R.N. Tripathy. None of the said 04 Nos. of PW's whose statements have been produced as Exhibits by PW-09 (P.E.O.) in support of the allegations levelled against the Charged Official appeared before the E.O. and attended the D.E. to confirm the veracity/genuineness of their statements produced as Exhibits the PW-09 (P.E.O.). And hence Exhibits-18, 19, 20 & 21 cann't be considered as a Proved document/ evidence until or unless the persons/PW's who prepared or given those statements and produced as Exhibits-18, 19, 20 & 21 states or confirms that they had given those statements to Sh. R.N. Tripathy during the course of P.E. This Court further finds the enquiry report at Page-54, internal page-20 of the enquiry officer again observed as follows: iii) Similarly, the Micro Cassette wherein the alleged telephonic conversation of dt:27.04.04 was recorded and produced as Exhibit-06 by the PW09 Sh.R.N.Tripathy Insp. CBI (P.E.O.) was not signed by the complainant Sh. Subha Pattnaik, Sh. R.K. Sarangi PW-13, Sh. S.N.Das PW-14 and even by PW-01 Sh. S.D.Mishra Insp. CBI who recorded the telephonic conversation and PW-09 itself resulting of which the genuineness and originality of the said Micro Cassette and Exhibit06 has come under clouds which can't be considered as a proved document. 10. Looking to the above clear recording of the Enquiry Officer, this Court finds not only the statement of the complainant claimed to be recorded during P.E. is not signed but there is even no examination of the complainant at least to establish that the statement produced by way of Exhibit-18 is of himself. Further, so far as material objects, the micro cassette wherein telephonic conversion dated 27.04.2004 was recorded being produced by PW-09, it was found that no signature of the complainant was also obtained on the same. Admittedly there is also refusal of request at the instance of the delinquent to have a polygraph/voice test of such recording to ensure that he is one of the participants. Therefore, there is no other way for the establishment to examine the conversion made in the telephonic through a competent agency. Admittedly there is also refusal of request at the instance of the delinquent to have a polygraph/voice test of such recording to ensure that he is one of the participants. Therefore, there is no other way for the establishment to examine the conversion made in the telephonic through a competent agency. It is at this stage taking into consideration the disagreement note of the Disciplinary Authority, this Court finds the disagreement note only contents some development taking place during the complainant attending the CBI Office pursuant to High Court's order. Further, some developments appearing to be taking place involving the complainant during the P.E. and making a reference to some evidence here and there during the enquiry proceeding. It is surprised to take note here that the Disciplinary Authority has not discussed or communicated in any manner as to why and on which aspect of the Enquiry Officer being differed by him. 11. Taking into consideration the law of the land, this Court here finds on the question of validity of an order of the Disciplinary Authority in absence of examination of the complainant, the vital witness, this Court finds the law of land on this reads as follows: i) In the case of Hardwari Lal Vrs. State of U.P. and others, (2000) AIR SC 277 , the Hon'ble Apex Court in paragraph-3 of the above cited judgment held as follows: "3. Before us the sole ground urged is as to the non-observance of the principles of natural justice in not examining the complainant, Shri Virender Singh, and witness, Jagdish Ram. The Tribunal as well as the High Court have brushed aside the grievance made by the appellant that the non-examination of those two persons has prejudiced his case. Examination of these two witnesses would have revealed as to whether the complaint made by Virender Singh was correct or not and to establish that he was the best person to speak to its veracity. So also, Jagdish Ram, who had accompanied the appellant to the hospital for medical examination, would have been unimportant witness to prove the state or the condition of the appellant. We do not think the Tribunal and the High Court were justified in thinking that non-examination of these two persons could not be material. So also, Jagdish Ram, who had accompanied the appellant to the hospital for medical examination, would have been unimportant witness to prove the state or the condition of the appellant. We do not think the Tribunal and the High Court were justified in thinking that non-examination of these two persons could not be material. In these circumstances, we are of the view that the High Court and the Tribunal erred in not attaching importance to this contention of the appellant." ii) Similarly, in the case of Bhubaneswar Chhatria Vrs. Union of India and others, (2000) 2 OrissaLR 564 , this Court deals with a situation of non-examination of the vital witnesses. Further, this Court taking into account the decision in the case of Hardwari Lal (supra) was also of the view that punishment in the similar circumstance is against law. In another decision of this Court in the case of G.S. Srivastav Vrs. Union of India & Ors, (2014) 2 ILR(CUT) 618 , this Court taking into account non-examination of vital witness came to hold that the order of removal from service passed by the Disciplinary Authority being confirmed by the Appellate Authority and the Revisional Authority becomes bad. iii) In the case of Rajinder Kumar Kindra Vrs. Delhi Administration through Secretary (Labour) and others, (1984) AIR SC 1805 , the Apex Court held that on the premises that there has been no observance of natural justice inasmuch as finding of the Disciplinary Authority based on no prudent evidence came to observe in paragraph-16 that in the event of finding based on no evidence can be rejected as perverse. For better appraisal, this Court takes note of the observation of the Hon'ble Apex Court in the above record case in paragraph-16, which reads as follows: "16. Mr. Jain contended that once Mr. Kakkar came to the conclusion that the appellant was given full opportunity to participate in the domestic enquiry neither High Court under Art.226 nor this Court under Art.136 can sit in appeal over the findings of the enquiry officer and reappraise the evidence. We have not at all attempted to re-appreciate the evidence though in exercise of the jurisdiction conferred by Sec.11-A of the Industrial Disputes Act, 1947 both arbitrator and this court can reappraise the evidence led in the domestic enquiry and satisfy itself whether the evidence led by the employer established misconduct against the workman. We have not at all attempted to re-appreciate the evidence though in exercise of the jurisdiction conferred by Sec.11-A of the Industrial Disputes Act, 1947 both arbitrator and this court can reappraise the evidence led in the domestic enquiry and satisfy itself whether the evidence led by the employer established misconduct against the workman. It is too late in the day to contend that the arbitrator has only the power to decide whether the conclusions reached by the enquiry officer were plausible one deducible from the evidence led in the enquiry and not to re-appreciate the evidence itself and to reach the conclusion whether the misconduct alleged against the workman has been established or not. This Court in Workmen of M/s. Firestone Tyre & Rubber Co. Of India (P) Ltd. v. Management, (1973) 3 SCR 587 : ( AIR 1973 SC 1227 ) , held that since the introduction of Sec. 11-A in the Industrial Disputes Act, 1947, the Industrial Tribunal is now equipped with the powers to reappraise the evidence in the domestic enquiry and satisfy itself whether the said evidence relied upon by the employer establishes the misconduct alleged against the workman. It is equally well settled that the arbitrator appointed under Sec.10-A is comprehended in Sec.11-A. This Court in Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha, (1980) 2 SCR 146 : ( AIR 1980 SC 1896 ) , held that an arbitrator appointed under Sec.10-A of the Industrial Disputes Act, 1947 is comprehended in Sec.11-A and the arbitral reference apart from Sec.11-A is plenary in scope. Therefore, it would be within the jurisdiction both of the arbitrator as well as this court to re-appreciate the evidence though it is not necessary to do so in this case. It is thus well settled that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man would come, the arbitrator appointed under Sec.10-A of this Court in appeal under Art.136 can reject such findings as perverse. Holding that the findings are perverse does not constitute reappraisal of evidence, though we would have been perfectly justified in exercise of powers conferred by Sec.11-A to do so." 12. Considering the observation of this Court with regard to evidence, the law of the land both referred to hereinabove, this Court finds the order of dismissal remain bad in law. Holding that the findings are perverse does not constitute reappraisal of evidence, though we would have been perfectly justified in exercise of powers conferred by Sec.11-A to do so." 12. Considering the observation of this Court with regard to evidence, the law of the land both referred to hereinabove, this Court finds the order of dismissal remain bad in law. As a consequence, this Court interfering in the order of dismissal passed by the Disciplinary Authority, vide Annexure-8 sets aside the same. As a consequence of setting aside of the order under Annexure-8, the orders of the Appellate Authority and the Revisional Authority, vide Annexures-10 and 12 are also declared as bad and consequently both the Annexures-10 and 12 are also set aside. This Court thus answers the questions (B) and (C) in favour of the petitioner. 13. In the circumstances, this Court while entertaining the writ petition interferes in the order of the Disciplinary Authority as well as the Appellate Authority and the Revisional Authority. While directing authorities to reinstate the petitioner forthwith, this Court also directs that the petitioner is also entitled to get the entire arrear along with interest @6% all through. Arrear may be calculated within a period of one and half months and be released in favour of the petitioner within a period of fifteen days thereafter along with interest as directed. The writ petition is accordingly allowed. There shall be no order as to cost.