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2020 DIGILAW 372 (JHR)

Subhash Kumar v. Union Of India

2020-02-25

APARESH KUMAR SINGH, KAILASH PRASAD DEO

body2020
JUDGMENT 1. Heard learned Senior Counsel for the petitioner Mr. Ajit Kumar, assisted by learned counsel Mr. H.P. Singh and Mr. Vikash Kumar and learned counsel for the Respondent-Union of India Mr. Madan Prasad. 2. Petitioner faced a departmental proceeding and also a criminal proceeding. Applicant was facing departmental exam for promotion to the Postman Cadre on 06.06.2010. Though he appeared in Paper-A exam, but in second sitting, some other candidate was found impersonating in his place. Other person was the brother of the applicant. Both of them faced trial for impersonation and at the end, the brother namely, Avinash Kumar was convicted, while the applicant was acquitted by the learned Trial Court vide judgment dated 22.03.2018 (Annexure-8) rendered in T.R. No. 68/2018 (G.R. Case No. 1960/2010). In the departmental proceeding, applicant was charged with the misconduct that during departmental examination on 06.06.2010, applicant who was functioning as GDSBPM Matari in a/c with Katras Bazar, appeared in the exam in Paper-A with Roll No. DNB-100, but at the time of examination in Paper-B, he managed to appear his own brother named as Avinash Kumar by removing his photograph from hall permit and pasting the photograph of his own brother Avinash Kumar. Charges were found to be proved and the Appellate Authority as well as Revisional Authority refused to interfere in the order of punishment. 3. Before the learned CAT, applicant took a ground that the Disciplinary Authority did not appreciate his defence and without affording any opportunity of being heard, punishment was imposed in violation of principles of natural justice. The punishment was also disproportionate to the alleged misconduct, if at all assumingly established. 4. Respondent contested the plea and also defended their stand in the proceedings before CAT. Learned Tribunal considered the case of the parties and gravity of the misconduct committed by the applicant. It came to a finding that the order of Disciplinary Authority did not suffer from any perversity or violation of principles of natural justice. Orders of Appellate and Revisional Authority were also proper in the eye of law. Punishment did not appear to be shockingly disproportionate to the established misconduct. Relying upon the decision of the Apex Court rendered in the case of Dy. Inspector General of Police and Anr. Vs. Orders of Appellate and Revisional Authority were also proper in the eye of law. Punishment did not appear to be shockingly disproportionate to the established misconduct. Relying upon the decision of the Apex Court rendered in the case of Dy. Inspector General of Police and Anr. Vs. S. Samuthiran [ (2013) 1 SCC 598 ], learned CAT opined that acquittal in criminal case ipso facto does not entitle reinstatement in service. Since the charges were of very serious nature and have been proved in a proper departmental proceeding, findings of which are amenable to judicial review on limited grounds, Original Application was held to be devoid of merit. 5. Learned Senior Counsel has laboured in support of the case of the applicant/petitioner on the following plea: He has placed the findings of learned Trial Court at Annexure-8 where it has been held that the applicant Subhash Kumar admittedly had not impersonated anybody, neither was any charge framed under section 120-B of Indian Penal Code. There was nothing on record to even suggest that he hatched conspiracy with the accused Avinash Kumar and both the accused persons had prior meeting of minds before commission of impersonation by the accused Avinash Kumar. Prosecution having failed to establish the charge of impersonation or conspiracy to do so against this applicant, his acquittal on the same charges entitles him to reinstatement in service. Disciplinary Authority has also not been able to render a finding to the effect that the petitioner who had fallen ill after appearing in the first sitting, had connived with the other person Avinash Kumar to ensure his appearance in place of the applicant in the exam. Therefore, the charges were not proved to the hilt, though they are the same and similar to the criminal charge and degree of proof required in such case should be more than preponderance of probability. Petitioner has suffered dismissal from service which is a maximum penalty. If in the criminal case, where guilt of such a serious criminal charge has not been proved beyond reasonable doubt, the Disciplinary Authority should have taken into account his acquittal and reconsidered the penalty imposed upon. The impugned order of penalty as affirmed up to the Revisional Authority was therefore worthy of being interfered. Learned Tribunal has failed to appreciate the case of the applicant in proper perspective in the light of principles applicable to departmental proceedings. The impugned order of penalty as affirmed up to the Revisional Authority was therefore worthy of being interfered. Learned Tribunal has failed to appreciate the case of the applicant in proper perspective in the light of principles applicable to departmental proceedings. Therefore, the order impugned may be interfered. 6. Learned counsel for the Union of India has strongly opposed the submission. It is submitted that the applicant and non-else was to be the beneficiary of such impersonation. The standard of proof in criminal trial and departmental proceeding are distinct. In the criminal trial, prosecution adduced three witnesses, two of whom turned hostile and the Informant was the Inspector of RMS, Dhanbad Division, Dhanbad who was deputed as Invigilator in the departmental examination. Learned Trial Court had also failed to frame charges under section 120-B of Indian Penal Code for the offence of criminal conspiracy. However, in a proper departmental proceeding, petitioner got full opportunity to participate and defend himself, but could not wriggle out the serious charge of misconduct. The employer has lost confidence in such an employee. In such circumstances, the only proper course for the employer was to do away with the service of such a tainted person. There is no unfairness in the proceeding, nor violation of principles of natural justice. The line of decisions rendered by the Apex Court do not permit re-appreciation of evidence adduced during the disciplinary proceeding, neither are findings recorded therein impeachable on the ground of inadequacy of materials unless they are shown to be perverse or based upon extraneous materials. Applicant has not been able to plead any such case. Learned Tribunal has, therefore, rightly declined to grant relief relying upon the decision of the Apex Court in the case of S. Samuthiran (Supra). 7. We have considered the submissions of learned counsel for the parties, taken into account the relevant materials on record pleaded by them and also perused the impugned judgment. The nature of misconduct committed by the applicant, proved during the departmental proceeding after adequate opportunity of defending himself, unquestionably leads to the only conclusion that the applicant and applicant alone could have been the beneficiary of such an act of impersonation in the departmental exam. It was also found that his photograph was also removed from the admit card and that of his brother was pasted on it. The plea of illness, etc. It was also found that his photograph was also removed from the admit card and that of his brother was pasted on it. The plea of illness, etc. may have been taken by the applicant, but it is clearly unworthy of credence that an imposter would appear as a candidate in the departmental exam without any intent to benefit the employee himself. Here the imposter is the brother himself. In such a case of grave misconduct, the employer is bound to lose confidence in the employee and continuance of such an employee in service would not be in the health of the Institution. Principles for interference in matters relating to disciplinary proceedings has been well settled by the decisions of the Apex Court and have been reiterated in the latest judgment rendered by the Apex Court in the case of State of Karnataka & Anr. Versus N. Gangaraj in Civil Appeal No. 8071/2014 relying upon number of earlier decisions. Opinion of the Apex Court contained at paragraph 7 to 9 is reproduced herein-below: ''7. We find that the interference in the order of punishment by the Tribunal as affirmed by the High Court suffers from patent error. The power of judicial review is confined to the decision-making process. The power of judicial review conferred on the constitutional court or on the Tribunal is not that of an appellate authority. 8. In State of Andhra Pradesh & Ors. v. S. Sree Rama Rao, a three Judge Bench of this Court has held that the High Court is not a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant. It is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. The Court held as under: ''7. The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with 2 AIR 1963 SC 1723 5 the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence.'' 9. In B.C. Chaturvedi v. Union of India & Ors. , again, a three Judge Bench of this Court has held that power of 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 eyes of the court. The Court/Tribunal in its power of judicial review does not act as an appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. It was held 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 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 3 (1995) 6 SCC 749 6 entitled to hold that the delinquent officer is guilty of the charge. 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 3 (1995) 6 SCC 749 6 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 reappreciate 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 reappreciate 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.'' 8. We do not find any ground whatsoever made out on the part of the applicant to assail the impugned penalty. As such, no interference is called for in the order of learned CAT. Writ petition being devoid of merit, is dismissed.