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2022 DIGILAW 1394 (JHR)

Manoj Yaswantrao Ingle v. Union of India

2022-12-13

ANANDA SEN

body2022
JUDGMENT : Heard the parties. 2. In this writ application, petitioner is challenging the order dated 30.9.1997 passed by the Commandant CISF whereby after conclusion of a Departmental proceeding petitioner was inflicted with punishment of dismissal from service. Further the Appellate Order dated 27.5.1999 passed by the Appellate Authority in the Departmental Appeal is also under challenge as the appeal also stood dismissed. 3. Counsel for the petitioner submits that though the petitioner was punished in the Departmental proceeding but the petitioner was a mere a scapegoat. In criminal revision which arose out of the same incident being Criminal Revision No. 614 of 2002, the conviction of the petitioner was set aside and he was acquitted, thus as per the petitioner, he is entitled to get the benefit of the said judgment and should be reinstated after setting aside the order of dismissal. 4. Counsel appearing on behalf of the respondent submits that the charges levelled against the petitioner in Departmental proceeding are grave. The standard of proof in Departmental proceeding is not the same as that in a criminal trial. He further submits that mere acquittal in a criminal case, will not entitle the petitioner to get benefit, as the Departmental proceeding concluded much prior to the order of acquittal in criminal revision. It has further been argued that there was no illegality or irregularity in the Departmental proceeding, thus this Court sitting under Article 226 of the Constitution, not being the Appellate Authority, cannot interfere with the order of dismissal. 5. After going through the records, I find that the petitioner was a constable in CISF. He was posted in BCCL, Dhanbad Mines to provide Security. He was suspended as he had committed misconduct. Charge-sheet was submitted to the petitioner. There were three articles of charges against the petitioner which are as follows:- “Article of Charge No.1 No.882290591 Const. M.Y Ingle (under suspension) of Area IX of CISF Unit, BCCL Dhanbad has committed an act of gross misconduct, breach of discipline and dereliction of duties in that he was detailed for ‘A’ shift duty at pay loader workshop. GOCP on 24.3.96 from 0500 hrs to 1700 hrs, but he was found helping in theft being committed at his duty post, in civil cloths. He was caught red-handed by HC/ GD.B.D Pathak along with a thief namely Nepal Sav. GOCP on 24.3.96 from 0500 hrs to 1700 hrs, but he was found helping in theft being committed at his duty post, in civil cloths. He was caught red-handed by HC/ GD.B.D Pathak along with a thief namely Nepal Sav. Thus, this act of the individual tantamounts to gross misconduct and dereliction of duties and highly prejudicial to the good order and discipline of an Armed Force of the Union. Hence the charge Article of Charge No.II No.882290591 Const. M.Y. Ingle (under suspension) of Area IX of CISF Unit, BCL Dhanbad, has committed an act of gross misconduct and morale turpitude in that he asked Mr. Nepal Sav to pay Rs.500/- to him in order to assist him in committing a theft during his ‘A’ Shift duty at pay loader workshop, GOCP on 24.3.96 from 0500 hours to 1700 hours. This act of the individual is highly prejudicial to the good order and derogatory to the reputation of the Force. Hence the charge. Article of Charge No.III That No. 882290591 Const. M.Y Ingle (under suspension) of Area IX of CISF Unit. BCCL Dhanbad has been awarded one major punishment during his service i.e “pay reduction to the minimum stage from Rs980/- to Rs.855 in the time scale of pay for one year without cumulative effect” for desertion from unit lines w.e.f 4.3.95 to 9.5.95. His past records of misconduct and disorderly behaviour shows that he is a habitual offender. He has not shown any improvement in his conduct in spite of repeated opportunities given to him. Thus, his habitual misconduct tantamounts to gross indiscipline and is highly prejudicial to good order and reputation of an Armed Force of the Union.” 6. As the reply was unsatisfactory, the petitioner was proceeded against in the Departmental proceeding. The Enquiry Authority after collecting the evidence submitted his reported wherein it was held that petitioner is guilty of the misconduct. After following the procedure the petitioner was dismissed from service vide order dated 30.9.1997. The Departmental Appeal also stood dismissed vide order dated 27.5.1999. 7. From the charge-sheet, I find that the main allegation against the petitioner is “grave misconduct, breach of discipline and dereliction of duty”. He was in ‘A’ shift duty at pay loader workshop, GOCP on 24.3.96 from 0500 hours to 1700 hours but he was found assisting in a commission of theft. 7. From the charge-sheet, I find that the main allegation against the petitioner is “grave misconduct, breach of discipline and dereliction of duty”. He was in ‘A’ shift duty at pay loader workshop, GOCP on 24.3.96 from 0500 hours to 1700 hours but he was found assisting in a commission of theft. He was found in civil dress when he was caught red handed along with a thief namely Nepal Saw. The allegation further goes that he had asked Nepal Saw to pay Rs.500/- to him in order to assist him in commission of the theft. There is further allegation that he was a habitual offender and was punished in an earlier proceeding. As these aforesaid charges were proved the petitioner was punished by the disciplinary authority. A criminal case under Section 379 of IPC was also instituted in which petitioner was an accused being G.R. Case No. 875 of 1996. In the said criminal trial the petitioner was convicted by the trial court and his appeal was also dismissed by the IIIrd Additional Sessions Judge, Dhanbad. He was sentenced to R.I for one year. The petitioner preferred a revision before this Court being Criminal Revision No. 614 of 2002. Vide order dated 10.7.2017 revisional Court acquitted the petitioner, giving him benefit of doubt. 8. Admittedly this Court is not an Appellate Authority sitting in an appeal over the order passed by the Disciplinary Authority. When there is no grave illegality or irregularity committed during the proceeding, this Court cannot interfere with the proceedings. 9. After hearing the parties, I have gone through the records. Allegations against the petitioners have been mentioned above. The jurisdiction of the Court under Article 226 of the Constitution of India while considering a departmental proceeding is very limited. The Hon’ble Supreme Court, in the case of Director General of Police, Railway Protection Force and Others versus Rajendra Kumar Dubey reported in 2020 SCC OnLine SC 954 at paragraph 37 thereof has held that it is well settled that High Court cannot act as an Appellate Authority and re-appreciate the evidence, which was led before the enquiry officer. By referring to judgment in the case of State of Andhra Pradesh versus S. Sree Rama Rao, the Hon’ble Supreme Court has held that it is not the function of the High Court to review on the findings and arrive at a different decision. By referring to judgment in the case of State of Andhra Pradesh versus S. Sree Rama Rao, the Hon’ble Supreme Court has held that it is not the function of the High Court to review on the findings and arrive at a different decision. In a departmental proceeding, scope is very limited and it is well settled that the High Court can interfere where the departmental authority has acted against the principles of natural justice or where the findings are based on no evidence or in violation of the statutory rules provided. Further, if the punishment imposed is excessive, the Court can interfere. It has also been held by the Hon’ble Supreme Court that under Article 226 and 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 the 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. 10. Further, in the case of Deputy General Manager (Appellate Authority) and Others versus Ajay Kumar Srivastava reported in (2021) 2 SCC 612 , the Hon’ble Supreme Court at paragraph 24 thereof has held as under:- “24. It is thus settled that the power of judicial review, of the constitutional courts, is an evaluation of the decision making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The court/tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry 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 or where the conclusions upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.” 11. In paragraph 25 of the aforesaid judgment (Ajay Kumar Srivastava) the Hon’ble Supreme Court has narrated the scope, which reads as follows:- “25. When the disciplinary enquiry is conducted for the alleged misconduct against the public service, the court is to examine and determine: (i) whether the enquiry was held by the competent authority; (ii) whether rules of natural justice are complied with; (iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion.” 12. In paragraph 28 of the aforesaid judgment (Ajay Kumar Srivastava) the Hon’ble Supreme Court has held that while exercising jurisdiction under Article 226 or 136 of the Constitution, the Court will not interfere with the findings of fact arrived at in the departmental enquiry proceeding except in a case of mala fides or perversity, i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at those findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained. 13. In the instant case, I find that there is no procedural illegality or irregularity committed by the Authority. The principle of natural justice has also been followed and full opportunity was given to the petitioner to defend his case, which he also acknowledged. So far the quantum of punishment is concerned, the same is the prerogative of employer. If the court finds and arrives at a conclusion that the punishment does not commensurate with the proved charge(s) then only the court can interfere with the quantum of punishment. In this case the petitioner is a CISF personnel and his prime duty was to safe guard the property of company. If the court finds and arrives at a conclusion that the punishment does not commensurate with the proved charge(s) then only the court can interfere with the quantum of punishment. In this case the petitioner is a CISF personnel and his prime duty was to safe guard the property of company. The allegation is that he connived with a thief and was helping him in stealing the property. Though in the criminal revision he was acquitted by the court giving him the benefit of doubt but that will have no bearing upon the departmental proceeding for the reason that departmental proceeding had concluded on 30.9.1997 which is based on independent evidence though the witnesses were same. Be it noted here that the judgment of acquittal was delivered much after the final order was passed in the departmental proceeding. 14. The Hon’ble Supreme Court while deciding a similar issue in State Bank of Bikaner & Jaipur Vrs. Nemi Chand Nalwaya reported in (2011) 4 SCC 584 in paragraph 10 has held that subsequent acquittal of the delinquent giving benefit of doubt will not render a completed departmental proceeding invalid nor affect the validity of the finding of guilt in the departmental proceeding. It is necessary to quote paragraph 10 of the aforesaid judgment which reads as follows:- “The fact that the criminal court subsequently acquitted the respondent by giving him the benefit of doubt, will not in any way render a completed disciplinary proceedings invalid nor affect the validity of the finding of guilt or consequential punishment. The standard of proof required in criminal proceedings being different from the standard of proof required in departmental enquiries, the same charges, and evidence may lead to different results in the two proceedings, that is, finding of guilt in departmental proceedings and an acquittal by giving benefit of doubt in the criminal proceedings. This is more so when the departmental proceedings are more proximate to the incident, in point of time, when compared to the criminal proceedings. The findings by the criminal court will have no effect on previously concluded domestic enquiry. An employee who allows the findings in the enquiry and the punishment by the disciplinary authority to attain finality by non-challenge, cannot after several years, challenge the decision on the ground that subsequently, the criminal court has acquitted him.” 15. The findings by the criminal court will have no effect on previously concluded domestic enquiry. An employee who allows the findings in the enquiry and the punishment by the disciplinary authority to attain finality by non-challenge, cannot after several years, challenge the decision on the ground that subsequently, the criminal court has acquitted him.” 15. Considering the facts of this case and also the judgment cited above, I find no ground to interfere with the order of dismissal and the appellate order. Thus, this writ application stands dismissed.