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2022 DIGILAW 840 (HP)

Ramesh Kumar v. Union of India

2022-12-19

JYOTSNA REWAL DUA

body2022
JUDGMENT : Jyotsna Rewal Dua, J. Penalty of removal from service was imposed upon the petitioner, a Constable (Driver), for the reason that he being a member of the disciplined force, had brought a civil lady in the official tent at the campus premises during night hours on 21.02.2007 without seeking permission of the competent authority, engaged in undesirable activities with her, indulged in indiscipline and also endangered security of the camps. The penalty imposed upon the petitioner was not interfered by the Appellate Authority. The Revisional Authority also affirmed the penalty order. Pursuant to the directions passed by this Court in a writ petition filed by the petitioner, the appellate and the revisional authority revisited their orders and by passing detailed and speaking orders once again affirmed the penalty imposed upon the petitioner. Aggrieved against imposition of penalty, the petitioner has preferred this writ petition. 2. Bare minimum facts, which need to be noticed are that:- 2(i). The petitioner was appointed as Driver with Sashastra Seema Bal (SSB) in the year 1990. In the year 2007, he was discharging his duties with the Central Reserve Police Force as Driver. A complaint was lodged against the petitioner that he brought a civil lady in his tent on 21.02.2007 at about 10:30 pm, indulged in undesirable activities with her and endangered the security of the campus. The petitioner was put under suspension on 23.02.2007. 2(ii). The respondents got a preliminary inquiry conducted into the matter. The statements of the petitioner and four other witnesses were recorded. The petitioner admitted his guilt during the preliminary inquiry. The statements of the petitioner and four other witnesses recorded during the preliminary inquiry have been made part of the reply to the present petition at Annexures R-1 and R-2 (Colly.). 2(iii). A memorandum of charges was issued to the petitioner on 17.04.2007 under Rule 27 of the Central Reserve Police Force Rules, 1955. Two charges were levelled against the petitioner. The first charge was that while discharging the duties as Constable/Driver, the petitioner was involved in undesirable activities in bringing a civil lady in his tent on 21.02.2007 without taking prior permission of the competent authority. The second charge was that the petitioner had unauthorizedly kept a civil lady in his tent without informing his senior officer, did not maintain the discipline of the force and thus endangered/breached the campus security. 2(iv). The second charge was that the petitioner had unauthorizedly kept a civil lady in his tent without informing his senior officer, did not maintain the discipline of the force and thus endangered/breached the campus security. 2(iv). The Inquiry Officer was appointed. Statements of the witnesses and of the delinquent official (petitioner) were recorded. On conclusion of the inquiry, the report was submitted by the Inquiry Officer to the Disciplinary Authority on 31.05.2007. Both the charges levelled against the petitioner were held proved. Show cause notice was issued by the disciplinary authority to the petitioner on 06.07.2007 (Annexure P-7) alongwith a copy of the inquiry report. 2(v). Petitioner’s representation against the show cause notice and the inquiry report was considered by the disciplinary authority. On consideration of the inquiry report, the record of the case and the nature of misconduct, the petitioner was awarded penalty of removal from service with immediate effect vide order dated 06.08.2007. 2(vi). Petitioner’s appeal against the imposition of penalty of removal from service was dismissed by the appellate authority on 18.10.2007 (Annexure P-12). His revision was also dismissed by the revisional authority on 23.07.2008 (Annexure P-15). 2(vii). Civil Writ Petition No.1164 of 2009 instituted by the petitioner against the penalty of removal from service imposed upon him, was allowed on 13.08.2012 on the ground that the appellate as well as revisional authority had not passed speaking orders in the matter. The appellate authority was directed to decide the matter afresh by passing a speaking order. Pursuant to the remand of the matter, the appellate authority considered the matter afresh and passed speaking order on 18.12.2012 (Annexure P-17), rejecting petitioner’s appeal. The revisional authority also dismissed petitioner’s revision vide reasoned order dated 18.02.2013 (Annexure P-19). In this background, the petitioner has instituted the present writ petition for the grant of following substantive relief :- “(i) That the charge-sheet dated 17.4.2007 (Annexure P-2), inquiry report (Annexure P-9), the order passed by the disciplinary authority dated 6.8.2007 (Annexure P-10), the order passed by the appellate authority dated 18.10.2007 (Annexure P-12) and the order passed by the revisional authority (Annexure P-15) being illegal, arbitrary and unjust be quashed.” 3. Heard respective counsel for the parties and gone through the record. 3(i). Heard respective counsel for the parties and gone through the record. 3(i). Learned counsel for the petitioner contended that the orders passed by the appellate authority and revisional authority are not in accordance with law as the medical examination of the petitioner was not conducted to substantiate and prove the act of misconduct alleged against him. In absence of such medical examination, the petitioner cannot be held guilty of misconduct attributed to him. It was also contended that the bed-sheets statedly used by the petitioner were not sent for chemical analysis by the respondents. Hence, it cannot be said that the alleged charge of misconduct was proved against the petitioner. The argument of not conducting the medical examination of the petitioner and not sending the bed-sheets for chemical analysis is way off the mark. The charges levelled against the petitioner were that while on duty, he had engaged in undesirable activity with a civilian lady in the official tentage accommodation and further that he had brought the lady in his tent without prior permission of the competent authority, thereby exhibiting disobedience of the superior officers, breach of security and non-maintenance of discipline of the force. There was no requirement of conducting petitioner’s medical examination or sending the bed sheets for chemical analysis. This point raised by the petitioner before the Revisional Authority was rightly rejected by the authority. 3(ii). The second point raised by the learned counsel for the petitioner is that the inquiry report was neither clear nor definitive. The inquiry report was perverse and based upon no evidence. The above ground also lacks substance. The statements of witnesses and that of the petitioner recorded during preliminary inquiry have been made part of the case file at Annexures R-1 and R-2 (Colly.). The petitioner had admitted the allegations levelled against him in the preliminary inquiry. Statements of witnesses recorded during preliminary inquiry also corroborated the allegations. During regular inquiry, apart from the petitioner, five other witnesses were also examined by way of a questionnaire put to them. On conclusion of the inquiry, the Inquiry Officer submitted his report dated 31.05.2007, holding therein that both the charges levelled against the petitioner were proved. The inquiry report was independently considered by the Appellate Authority as well as the Revisional Authority not once but twice. Detailed and reasoned orders have been passed by these authorities pursuant to the directions of this Court. The inquiry report was independently considered by the Appellate Authority as well as the Revisional Authority not once but twice. Detailed and reasoned orders have been passed by these authorities pursuant to the directions of this Court. The argument raised by learned counsel for the petitioner is that during the regular inquiry, only one witness had supported the prosecution version. It is seen from the records that the points raised by the petitioner were elaborately dealt with by the appellate authority in para (c), (d) and (g) of its order passed on 18.12.2012 (Annexure P-17) as well as by the revisional authority in its order passed on 18.02.2013 (Annexure P-19). It has been observed by the appellate authority in its order as under:- “Reply of Point (c) The point raised by the petitioner under this point is false and baseless hence denied however, it is submitted that prosecution witness No.2 No.0281258 CT/Dvr. Nirmal Sarkar while deposing before Inquiry Officer and petitioner that “on 21/02/2007, after performing duty, we all (companion drivers) were resting at our beds. No.9068410 CT/Driver Ramesh Kumar switched off the light and brought one lady in his tent and then switched on the light. Further, he deposed that, the petitioner took the lady to the bed of Constable (Driver) Kaushal Kumar and done indecent/objectionable act with the lady. Moreover, the petitioner himself also cross examined the said prosecution witness Constable (Driver) Nirmal Sarkar. However, the petitioner himself confessed in his statement during preliminary enquiry of the case that, a lady had come with him in the tent and he has done something wrong with her in the bed of his companion driver.” The revisional authority while independently considering the matter observed, inter alia, as under :- “……………………………. Another matter clubbed by the appellant is that “the point of appeal was rejected on the reason that the applicant had admitted during the course of Preliminary Inquiry, it is also not true, as during the course of Departmental Inquiry No.0281258 CT/Driver Nirmal Sarkar has deposed that “on 21/2/2007, after performing duty, we all (companion drivers) were resting in our beds. No.9068410 CT/Driver Ramesh Kumar switched off the light and brought one lady in his tent and then switched on the light. Further he deposed that the petitioner took the lady to the bed of constable (driver) Kaushal Kumar and did objectionable act with the lady. No.9068410 CT/Driver Ramesh Kumar switched off the light and brought one lady in his tent and then switched on the light. Further he deposed that the petitioner took the lady to the bed of constable (driver) Kaushal Kumar and did objectionable act with the lady. Both the delinquent and the witness have signed the statement which is available on record. Here it seems that the appellant is confused about preliminary inquiry and preliminary hearing. Hence, the contention of the para is rejected being baseless, untenable and does not stand against the evidences of available records.” The points raised by the petitioner have been effectively considered by the appellate and revisional authority. 3(iii). Learned counsel for the petitioner next contended that charge of breach of security was not proved against the petitioner. The tents were located in an area which could have been easily accessed by other people. The above contention has also been rejected by the appellate authority with following reasoning :- “Reply of Point-(b) The point raised by the petitioner under Point-(b) is denied being factually incorrect however, it is submitted that there is no relation between allegation of charges levelled against the petitioner and pitching of the tents on the road side or deputing of guard. Pitching of tents for accommodation of force personnel is the administrative arrangement of the Force. Moreover, it is pertinent to mention here that the petitioner himself was the member of disciplined force and it was his moral duty to stop the entry of unauthorized persons into the campus or tents, if noticed by him.” The revisional authority held as under:- “Vide para above the appellant is trying to mislead the inquiry report as there is no relation between security system of the tent area and the charges levelled against him. Hence, the point does not stand against the evidences.” It is well settled that scope of judicial review in such like matters is very limited. Hence, the point does not stand against the evidences.” It is well settled that scope of judicial review in such like matters is very limited. Hon’ble Apex Court in (2020) 3 SCC 423 , titled State of Karnataka and another Versus N. Gangaraj, after noticing the facts of the case wherein Disciplinary Authority agreed with inquiry officer’s findings about delinquent police official being guilty of misconduct and imposed penalty of dismissal, which was affirmed in appeal, observed that the Tribunal and the High Court could not have interfered with the findings of facts recorded by re-appreciating the evidence as if they were the Appellate Authority. It was also observed that power of judicial review is confined to the decision making process and is not akin to the power of Appellate Authority. 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 eyes of law. In the instant matter, the petitioner had preferred appeal and revision against the penalty imposed upon him by the disciplinary authority. He remained unsuccessful in his endeavours. Pursuant to the decision of the writ petition filed by him, the appellate authority as well as revisional authority again considered the matter and with elaborate reasoning, rejected petitioner’s appeal and revision the second time. No infraction of procedure in conduct of inquiry proceedings has been pointed out. 3(iv). Learned counsel for the petitioner next contended that the punishment of removal from service imposed upon the petitioner was disproportionate to the charges levelled against him. In this regard, it will be appropriate to refer to a decision of the Hon’ble Apex Court dated 20.04.2022, rendered in Civil Appeal No.2707 of 2022, titled Anil Kumar Upadhyay Versus The Director General, SSB and others. In the said case, learned Single Judge had interfered with the order of punishment imposed by the disciplinary authority inter-alia on the ground that the same was disproportionate to the charges and set it aside. The Division Bench of the High Court restored the punishment imposed by the disciplinary authority. In the said case, learned Single Judge had interfered with the order of punishment imposed by the disciplinary authority inter-alia on the ground that the same was disproportionate to the charges and set it aside. The Division Bench of the High Court restored the punishment imposed by the disciplinary authority. The question before the Hon’ble Apex Court inter-alia was whether the learned Single Judge was justified in interfering with the order of punishment imposed by the disciplinary authority on the ground of same being disproportionate in the facts of the case where delinquent official was charged with indiscipline and misconduct leading to compromising security of occupants of ‘Mahila Barrack’. It was observed that when disciplinary authority considered it appropriate to punish him with penalty of ‘removal from service’, which is confirmed by the appellate authority, thereafter it was not open for the learned Single Judge to interfere with the order of punishment passed by the disciplinary authority. Relying upon (2001) 2 SCC 386 Om Kumar Vs. Union of India, (1995) 6 SCC 749 B.C. Chaturvedi Vs. Union of India, (2013) 12 SCC 372 Lucknow Kshetriya Gramin Bank Vs. Rajendra Singh, it was held that question of quantum of punishment in disciplinary matters is primarily for disciplinary authority and jurisdiction of High Courts under Article 226 of Constitution or of Administrative Tribunals is limited and is confined to applicability of ‘Wednesbury principles.’ When a statute gave discretion to an administrator to take a decision, scope of judicial review would remain limited. Interference with punishment order on ground of disproportionate to the charges was not permissible unless punishment imposed was shocking to the conscience of the Court. It will also be appropriate to refer to judgment dated 19.04.2022 passed by the Hon’ble Apex Court in Civil Appeal No.2665 of 2022, titled Union of India and others V/s M Duraisamy. The allegations against the respondent therein were that while serving as Postal Assistant during the period from 2004 to 2007, he had defrauded a substantial amount. On conclusion of the departmental inquiry, the disciplinary authority imposed penalty of removal from service upon the respondent. The allegations against the respondent therein were that while serving as Postal Assistant during the period from 2004 to 2007, he had defrauded a substantial amount. On conclusion of the departmental inquiry, the disciplinary authority imposed penalty of removal from service upon the respondent. Learned Tribunal partly allowed the original application preferred by the respondent and modified the order of punishment from removal from service to that of compulsory retirement on sympathetic ground by observing that the delinquent officer had himself deposited the entire amount involved and, therefore, no loss was caused to the department. The Tribunal also noticed that the delinquent officer had completed nearly 39 years of service and had not suffered any other punishment, but for the present one. The High Court affirmed the order passed by the Tribunal. Aggrieved, the Department preferred appeal before the Hon’ble Apex Court. The question before the Hon’ble Apex Court was that whether in the facts of the case, the Tribunal and the High Court were justified in interfering with the punishment imposed by the disciplinary authority and modifying the same from removal from service to that of compulsory retirement. The Apex Court held that such substitution in the facts of the case was unsustainable. In reaching this conclusion, a plethora of judicial precedents was also noticed. The limited scope of judicial review and the limited jurisdiction of the High Court on the proportionality of the order of departmental authority was also gone into. It was observed that merely because the employee had worked for 39 years and in those years, there was no punishment imposed and/or that he voluntarily deposited the defrauded amount alongwith penal interest cannot be a ground to interfere with the order of punishment imposed by the disciplinary authority. It would be appropriate to extract some relevant paragraphs from the judgment:- “6. Therefore, the short question which is posed for the consideration of this Court is, whether, in the facts and circumstances of the case, the Tribunal and the High Court were justified in interfering with the punishment imposed by the Disciplinary Authority and modifying/substituting the same from removal to that of compulsory retirement. 7. Therefore, the short question which is posed for the consideration of this Court is, whether, in the facts and circumstances of the case, the Tribunal and the High Court were justified in interfering with the punishment imposed by the Disciplinary Authority and modifying/substituting the same from removal to that of compulsory retirement. 7. While answering the aforesaid question/issue, the decision of this Court in the case of Goparaju Sri Prabhakara Hari Babu (supra), on the judicial review and the limited jurisdiction of the High Court on the proportionality of the order of departmental authority is required to be referred to. In the said decision, after referring to a catena of judgments of this Court, it is observed and held by this Court that the jurisdiction of the High Court on the proportionality of the order of departmental authority is limited. It is observed that it cannot set aside a well-reasoned order only on grounds of sympathy and sentiments. It is further observed and held that once it is found that all the procedural requirements had been complied with, courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. It is further observed that the superior courts, only in some cases may invoke the doctrine of proportionality, however if the decision of an employer is found to be within the legal parameters, the doctrine would ordinarily not be invoked when the misconduct stands proved. 7.1 In the case of B.C. Chaturvedi (supra), the High Court interfered with the order of punishment imposed by the Disciplinary Authority and substituted the punishment of dismissal from service to one of compulsory retirement on the reasoning that the employee had put in 30 years of service and that he had a brilliant academic record and that he had earned promotion after the disciplinary proceedings were initiated. Setting aside the judgment and order passed by the High Court, this Court observed that the reasoning is wholly unsupportable. Such reasons are not relevant or germane to modify the punishment. What is required to be considered is the gravity of the misconduct. In the said case, the employee was found to be in possession of assets disproportionate to the known sources of his income. Therefore, this Court observed and held that the interference with the imposition of punishment was wholly unwarranted. 8. What is required to be considered is the gravity of the misconduct. In the said case, the employee was found to be in possession of assets disproportionate to the known sources of his income. Therefore, this Court observed and held that the interference with the imposition of punishment was wholly unwarranted. 8. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, the order passed by the Tribunal, confirmed by the Division Bench of the High Court, substituting the punishment of removal to that of compulsory retirement is unsustainable. Neither the Tribunal nor the High Court have found any irregularity in conducting the departmental enquiry. No procedural lapses have been found. In fact, the respondent employee admitted the charge of having defrauded Rs.16,59,065/- and on detecting the fraud, he deposited the defrauded amount of Rs.16,59,065/- along with penal interest. But for the detection of the fraud, probably, the respondent employee would not have deposited the defrauded amount. Once, a conscious decision was taken by the Disciplinary Authority to remove an employee on the proved misconduct of a very serious nature of defrauding public money, neither the Tribunal nor the High Court should have interfered with the order of punishment imposed by the Disciplinary Authority, which was after considering the gravity and seriousness of the misconduct. 9. Merely because the respondent-employee had worked for 39 years and in those years, there was no punishment imposed and/or that he voluntarily deposited the defrauded amount along with penal interest and therefore there was no loss to the Government/Department cannot be a ground to interfere with the order of punishment imposed by the Disciplinary Authority and substitute the same from removal to that of compulsory retirement. Neither the Tribunal nor the High Court have, in fact, considered the nature and gravity of the misconduct committed by the delinquent officer. Therefore, both, the Tribunal as well as the High Court had exceeded in their jurisdiction in interfering with the quantum of punishment imposed by the Disciplinary Authority. 10. None of the grounds/reasoning on which the order of punishment of removal has been interfered with by the Tribunal and affirmed by the High Court are germane and can be sustained. Therefore, both, the Tribunal as well as the High Court had exceeded in their jurisdiction in interfering with the quantum of punishment imposed by the Disciplinary Authority. 10. None of the grounds/reasoning on which the order of punishment of removal has been interfered with by the Tribunal and affirmed by the High Court are germane and can be sustained. Once it was found that the delinquent officer who was serving in the post office had defrauded to the extent of Rs.16,59,065/- and that too, by way of fraudulent withdrawal in as many as 85 RD accounts and by way of non-credit of deposits in 71 RD accounts, no sympathy on such an employee was warranted. Being a public servant in the post office, the delinquent officer was holding the post of trust. Merely because subsequently the employee had deposited the defrauded amount and therefore there was no loss caused to the department cannot be a ground to take a lenient view and/or to show undue sympathy in favour of such an employee. What about the loss caused to the department by way of goodwill, name and fame of the department and its reliability amongst the public? By such a misconduct/act on the part of the delinquent officer, the reputation of the department had been tarnished. Therefore, in the facts and circumstances of the case, both, the Tribunal as well as the High Court have exceeded in their jurisdiction in interfering with the quantum of punishment imposed by the Disciplinary Authority and to substitute the same to that of compulsory retirement. 11. In view of the above and for the reasons stated above, the impugned judgment and order passed by the High Court as well as the order passed by the Tribunal substituting the order of punishment from removal to that of compulsory retirement cannot be sustained and the same deserve to be quashed and set aside.” In the instant case, it is an admitted position that the petitioner was a member of the disciplined force. He was responsible for maintaining law and order. The inquiry report had proved that the petitioner had engaged himself in undesirable activity with a civilian lady on the night of 21.02.2007 in the official tented accommodation. He had brought the lady on 21.02.2007 in his tent on his own will without prior permission of the competent authority. He was responsible for maintaining law and order. The inquiry report had proved that the petitioner had engaged himself in undesirable activity with a civilian lady on the night of 21.02.2007 in the official tented accommodation. He had brought the lady on 21.02.2007 in his tent on his own will without prior permission of the competent authority. These acts of the petitioner tentamounted to gross indiscipline & misconduct and had endangered/breached the security of the campus. Hence, in light of settled legal principles, no case for interference is made out. Before parting, it may also be observed that in the writ petition, there is no challenge to the order passed by the appellate authority on 18.12.2012 (Annexure P-17) and the order passed by the revisional authority on 18.02.2013 (Annexure P-19), whereby petitioner’s appeal and revision against the imposition of penalty of removal from service upon him by the disciplinary authority were rejected vide speaking and reasoned orders. 4. For all the aforesaid reasons, I find no merit in the present writ petition and the same is accordingly dismissed alongwith pending miscellaneous application(s), if any.