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2021 DIGILAW 830 (JHR)

Dev Dutt Rai v. Union of India

2021-10-04

RAVI RANJAN, SUJIT NARAYAN PRASAD

body2021
JUDGMENT : The instant intra-court appeal under Clause 10 of Letters Patent is preferred against the order/judgment dated 01.03.2021 passed by learned Single Judge in W.P. (S) No. 3563 of 2009, whereby and whereunder the learned Single Judge by dismissing the writ petition has refused to interfere with the order of punishment imposed by the respondents-authorities by which the pay of the writ petitioner was reduced by one stage from Rs. 4500 to Rs. 4400/-in the pay-scale of Rs. 4000-100-6000 for a period of one year with further direction that the writ petitioner will not earn increment during the period of reduction and it will have effect on his future increment. 2. The brief facts of the case, as per the pleadings made in the writ petition, which are required to be enumerated herein for proper adjudication of the lis, are as under: When the writ petitioner was posted as Head Constable in CISF Unit at Bokaro Steel City on 06.06.2004 and was on patrolling duty at about 7.00 a.m., the parties of Crime Branch found that about 15 to 20 persons were stealing Iron Scraps. On the basis of said incident, a departmental proceeding was initiated against the petitioner, in which he was found guilty and accordingly, punishment of reduction of pay by one stage from Rs. 4500 to Rs. 4400/-in the pay-scale of Rs. 4000-100-6000 for a period of one year with further direction that he will not earn increment during the period of reduction and it will have effect on his future increment, was imposed upon the writ petitioner by the disciplinary authority, which was affirmed by the appellate authority as well as by the revisional authority. Being aggrieved with the order of punishment, the writ petitioner approached this Court by invoking writ jurisdiction of this Court under Article 226 of the Constitution of India by filing writ petition being W.P. (S) No. 3563 of 2009 wherein ground has been taken that the relevant documents were not provided to him and was not allowed to cross-examine the witnesses even though the punishment being a major. Further, no person was seen at the place of occurrence from where the iron scraps were alleged to be removed but the inquiry officer has found the charges proved against him without appreciating the material lacuna and even the same has not been considered by the appellant or revisional authority. Further, no person was seen at the place of occurrence from where the iron scraps were alleged to be removed but the inquiry officer has found the charges proved against him without appreciating the material lacuna and even the same has not been considered by the appellant or revisional authority. While, on the other hand, argument advanced on behalf of respondents-CISF before the learned Single Judge was that there is no violation of principles of natural justice rather the writ petitioner was afforded adequate opportunity to cross-examine the witnesses but it is writ petitioner who had shown no desire to cross-examine the witnesses. However, in order to defend his case, he had examined the defense witness. The enquiry officer, considering the materials available on record, found the charges proved against the petitioner, which was accepted by the disciplinary authority, who imposed the impugned punishment, which was affirmed by the appellate as well as by the revisional authority, as such there are concurrent finding recorded by the three administrative authorities and the learned Single Judge after taking into consideration these aspects of the matter has refused to interfere with the order of punishment, which cannot be said to suffer from any infirmity. The learned Single Judge, after taking into consideration the rival submissions of the parties, dismissed the writ petition showing no interference with the order of punishment, which is the subject matter of present intra-court appeal. 3. We have heard learned counsel for the parties, perused the documents available on record as also finding recorded by the learned Single Judge. 4. Admitted fact in this case is that the writ petitioner, who was appointed as a member of disciplined force i.e. C.I.S.F., while posted as Head Constable in CISF Unit at Bokaro Steel City, Bokaro was assigned with patrolling duty in 1st Shift i.e. from 0500 hours to 1300 hours on 06.06.2004. In the meantime, the Members of the Crime Wing during patrolling at about 7.00 a.m. found that 15-20 persons were stealing Iron Scraps from the area of patrolling of the writ petitioner and further one rickshaw van was also found from that area. In the meantime, the Members of the Crime Wing during patrolling at about 7.00 a.m. found that 15-20 persons were stealing Iron Scraps from the area of patrolling of the writ petitioner and further one rickshaw van was also found from that area. As such, the petitioner was charge-sheeted on the allegation that on 06.06.2004 while he was on patrolling duty during 1st Shift commencing from 0500 hours to 1300 hours, about 15-20 criminals were found stealing the iron scrap and one Rickshaw Van was seized from the alleged place by the Crime Wing Staff alleging it to be dereliction of duty, indiscipline and misconduct. On the aforesaid charge, a departmental proceeding was initiated. The writ petitioner denied the aforesaid charge by putting his appearance before the enquiry officer. The enquiry officer conducted the enquiry, in which, the witnesses were examined and petitioner had also examined defence witness to defend his case. The enquiry officer, considering the evidence, documentary and oral, submitted his findings that the charges leveled against the petitioner has been proved, which was forwarded before the disciplinary authority. The disciplinary authority accepted the finding recorded by the enquiry officer and imposed the punishment vide order dated 28.11.2004 of reduction of pay by one stage from Rs. 4500 to Rs. 4400/-in the pay-scale of Rs. 4000-100-6000 for a period of one year with further direction that he will not earn increment during the period of reduction and it will have effect on his future increment, against which the writ petitioner preferred appeal and revision, but both were rejected vide order dated 24.02.2005 and 10.11.2005 by the appellate and revisional authority respectively. Being aggrieved with the order of punishment, the writ petitioner approached this Court by filing writ petition being W.P. (S) No. 3563 of 2009, but the learned Single Judge has refused to interfere with the order of punishment dated 28.11.2004 passed by the disciplinary authority. 5. The point which has been taken by learned senior counsel for the petitioner while assailing the order passed by the learned Single Judge is that there is violation of principles of natural justice as the writ petitioner was not allowed to cross-examine the witnesses and further enquiry has been conducted in a haphazard manner. 5. The point which has been taken by learned senior counsel for the petitioner while assailing the order passed by the learned Single Judge is that there is violation of principles of natural justice as the writ petitioner was not allowed to cross-examine the witnesses and further enquiry has been conducted in a haphazard manner. It has further been argued that other person who was on duty with the petitioner was neither charge-sheeted nor any departmental proceeding was initiated against him, as such, the disciplinary authority has adopted pick and chose policy, but this fact has not been appreciated by learned Single Judge. Therefore, the order passed by the learned Single Judge suffers from infirmity. 6. While, on the other hand, Ms. Shreesha Sinha, A.C to learned A.S.G.I. has submitted, by defending the order passed by learned Single Judge, that there is no violation of principles of natural justice as witnesses have been examined in presence of petitioner but he has not shown any willingness to cross-examine the witnesses. Further, defence witness was examined on behalf of petitioner in order to defend his case. The disciplinary authority taking into consideration these aspects of the matter has imposed the impugned punishment, which was affirmed by the appellate as also by the revisional authority. According to her, since there is concurrent finding by the three administrative authorities right from the disciplinary authority to revisional authority, no scope of judicial review was there before the learned Single Judge to interfere with the decision of the administrative authorities. As such submission has been made that since the learned Single Judge taking into consideration the limited scope of judicial review has refused to show any interference in the order passed by the administrative authority, no interference is required in the order passed by the learned Single Judge. 7. This Court, in order to appreciate the submissions advanced on behalf of parties deem it fit and proper to refer certain judicial pronouncement of the Hon’ble Supreme Court on the scope of judicial review in exercise of power conferred under Article 226 of the Constitution of India. Reference in this regard be made to the judgment rendered in Union of India & Ors Vs. Reference in this regard be made to the judgment rendered in Union of India & Ors Vs. P. Gunasekaran as reported [ AIR 2015 SC 545 ] wherein at paragraph 13, the following guidelines has been laid down for showing interference in the decision taken by the disciplinary authority and not to interfere with the decision, which reads hereunder as: “13. 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 enquiry officer. The finding on Charge No. 1 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 reappreciation of the evidence. The High Court can only see whether: a. the enquiry is held by a competent authority; b. the enquiry 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; i. the finding of fact is based on no evidence. 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 enquiry, 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 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.” The Hon’ble Apex Court in the case of Management of State Bank of India vs. Smita Sharad Deshmukh and Anr.[ (2017) 4 SCC 75 ], has laid down therein that it is equally settled position of law that the High Court sitting under Article 226 of the Constitution of India can certainly interfere with the quantum of punishment, if it is found disproportionate to the gravity of offence. The Hon’ble Apex Court in Central Industrial Security Force and Ors. vs. Abrar Ali [AIR (2017) SC 200], has laid down the guidelines at paragraph 8 showing interference by the High Court in the matter of punishment imposed on conclusion of the departmental proceeding, which is quoted herein below: “8. Contrary to findings of the Disciplinary Authority, the High Court accepted the version of the Respondent that he fell ill and was being treated by a local doctor without assigning any reasons. It was held by the Disciplinary Authority that the Unit had better medical facilities which could have been availed by the Respondent if he was really suffering from illness. It was further held that the delinquent did not produce any evidence of treatment by a local doctor. The High Court should not have entered into the arena of facts which tantamounts to re-appreciation of evidence. It is settled law that re-appreciation of evidence is not permissible in the exercise of jurisdiction under Article 226 of the Constitution of India. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya, reported in (2011) 4 SCC 584 : ( AIR 2011 SC 1931 , Para 6), this Court held as follows: "7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations. In Union of India and Ors.v. P. Gunasekaran, reported in (2015) 2 SCC 610 this Court held 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." 8. Thus, it is evident from the judicial pronouncement of the Hon’ble Apex Court, as referred herein above, that the judgment has been pronounced to show interference by the High Court sitting under Article 226 of the Constitution of India in exercise of power of judicial review, as per which, the High Court can interfere sitting under Article 226 of the Constitution of India under power of under judicial review in any of the eventuality as propounded in the judgment referred herein above. 9. 9. We are now proceeding to examine the factual aspects of the present case in order to see as to whether there is any scope of judicial review to show interference in the impugned order on the basis of material available on record? 10. It is not the case of the writ petitioner, although plea has been taken for not affording opportunity to cross-examine the witnesses, that witnesses have not been produced in presence of the writ petitioner rather witnesses have been produced in his presence by the administrative authorities and they have been examined. It is also admitted fact that nothing has come on record that the writ petitioner has shown his willingness by making requisition for cross-examination of witnesses produced on behalf of disciplinary authority, however, the writ petitioner has produced the defence witness in order to defend his case. Therefore, according to our considered view, it cannot be said a case of breach of principles of natural justice. 11. The other ground has been raised by learned senior counsel appearing for the petitioner that since other constable, who was on duty with the petitioner, had not been proceeded departmentally, the entire proceeding initiated against the petitioner will be said to be vitiated. In support of his argument, he has referred to the judgment rendered by Hon’ble Apex Court in Life Insurance Corporation of India & Ors Vs. TriveniSharan Mishra [2014(6)Supreme 747]. 12. We have considered the applicability of the aforesaid judgment in the facts and circumstances of the present case and found from the factual aspect involved therein that the said judgment pertains to parity in punishment. There is no dispute about the settled position of law that if departmental proceeding is initiated against more than one delinquent-employee and if the allegation leveled in the charge-sheet is exactly same and similar, similar punishment is required to be imposed otherwise it will hit the principle laid down under Article 14 of the Constitution of India. But, in the case in hand, it is admitted case of the writ petitioner that against the constable, who is said to have been deputed along with the petitioner, no departmental proceeding has been initiated and as such there is no question of following the principles of parity in punishment as when no departmental proceeding was initiated there is no question of imposing punishment at par with the delinquent-writ petitioner. Therefore, in the given facts of the case, the judgment rendered by Hon’ble Apex Court in Life Insurance Corporation of India & Ors Vs. TriveniSharan Mishra(supra) is not applicable. 13. So far as the contention that the same departmental proceeding ought to have been initiated against the co-employee since the same has not been initiated therefore the entire departmental proceeding so far it relates to the petitioner will also vitiate is concerned, we have not impressed with such argument as even accepting that no departmental proceeding has been against the said constable, the question remains that the writ petitioner is required to show his innocence by denying his charge and even accepting that the departmental proceeding would have been initiated against the said constable then whether the writ petitioner could have been said to be exonerated from the charges. There is no dispute about the settled position of law that in the departmental proceeding the delinquent-employee has to prove his innocence about his conduct and he cannot be allowed to show his innocence on the ground that for the similar duty assigned to other employee, no departmental proceeding has been initiated. Therefore, according to our view no advantage can be derived by the writ petitioner on the ground that no departmental proceeding has been initiated against the other employee. Further, no such plea was taken by the writ petition before the writ Court since nothing has been recorded in the order passed by the learned Single Judge save and except the principle of violation of natural justice and not allowing the writ petitioner to cross examine the witnesses. 14. We are, therefore, of the view that the writ petitioner has failed to make out a case showing interference by this Court under Article 226 of the Constitution of India by exercising the power of judicial review as per the proposition of law laid down in Union of India Vs. P. Gunasekaran(supra) and Central Industrial Security Force and Ors. vs. Abrar Ali (supra). 15. P. Gunasekaran(supra) and Central Industrial Security Force and Ors. vs. Abrar Ali (supra). 15. Further, as per the settled position of law, the fact finding recorded by the enquiry officer is least to be interfered with as has been held by Hon’ble Apex Court in the judgment referred herein above and herein the order passed by the disciplinary authority has been confirmed by the appellate authority as well as by the revisional authority and as such, there are three concurrent finding by the administrative authorities which is also one of the grounds for not showing interference in the impugned decision. 16. We have gone across the order passed by the learned Single Judge and found therefrom that all these aspects of the matters, which we have discussed herein above has been well considered by the learned Single Judge and even the order passed by the Hon’ble Supreme Court as referred herein above has also been taken note of therein, basis upon which the writ petition has been found to be devoid of merit. 17. We, on the basis of entirety of facts and circumstances of the case, are of the considered view that the order passed by the learned Single Judge suffers from no infirmity. 18. Accordingly, the appeal fails, and is dismissed.