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2023 DIGILAW 937 (JHR)

Sanjeev Kumar Singh v. Union of India

2023-07-26

S.N.PATHAK

body2023
JUDGMENT : Heard the parties. Prayers made 2. Petitioner has approached this Court with a prayer for quashing the order dated 31.01.2019, whereby the petitioner has been dismissed from service. Petitioner has further prayed for quashing the appellate order dated 20.05.2019 and revisional order dated 23.10.2019, whereby the appeal and revision preferred by the petitioner have been rejected and the order of dismissal was affirmed. Factual Matrix 3. The petitioner joined his service as Constable in CISF on 16.06.2007, he was initially posted at IISCO Steel Plant, Burnpur, Asansol. It is the case of the petitioner that while he was posted at BCCL Dhanbad i.e. CISF Unit of BCCL, Dhanbad, he was put under suspension vide order dated 28.10.2018 on the allegation of dereliction of duties. Thereafter, on 10.11.2018, charge-sheet was served upon the petitioner seeking reply of the petitioner. Thereafter, the petitioner filed a detailed reply on 17.11.2018 denying all the charges levelled against him. However, being not satisfied with the reply submitted by the petitioner, a departmental proceeding was initiated against him and the Enquiry Officer, after hearing the parties and perusing the records submitted his reply holding the petitioner guilty of the charges levelled against him. Thereafter, 2nd show-cause notice along with copy of enquiry report was issued to the petitioner and reply was sought for. Consequently, the petitioner filed his reply to the 2nd show-cause, however, being not satisfied with the reply of the petitioner, disciplinary authority vide his order dated 31.01.2019, dismissed the petitioner from services. 4. Against the order of dismissal the petitioner preferred Appeal but the appellate authority rejected the said appeal vide his order dated 20.05.2019 and affirmed the order of dismissal. Thereafter, the petitioner preferred revision on 25.07.2019 and the Revisional Authority vide his order dated 23.10.2019 rejected the claim of the petitioner and affirmed the order of the disciplinary authority as well as the appellate authority. Hence, the petitioner has been constrained to knock the door of this Court for redressal of his grievances. Submissions of learned counsel for the petitioner 5. Mr. Hence, the petitioner has been constrained to knock the door of this Court for redressal of his grievances. Submissions of learned counsel for the petitioner 5. Mr. Rajesh Kumar Sinha, learned counsel appearing for the petitioner assiduously argues that the impugned orders are not tenable in the eyes of law since the charges leveled against the petitioner does not warrant order of dismissal from the service as neither the corruption has been proved whether bribe was taken or not nor the source of viral video was verified and only on the basis of the alleged viral video, enquiry office came to its finding that the petitioner is guilty of the charges. Learned counsel further argues that in the instant case, the Disciplinary Authority, Appellate Authority and the Revisional Authority ignoring the relevant fact i.e. deposition of Khalasi and Owner of the Hotel as well as other persons, who deposed before the Enquiry Officer and only on the basis of surmises and conjectures and taking into consideration the irrelevant fact, passed the impugned orders, which is not tenable in the eyes of law. Learned counsel further argues that the Disciplinary Authority has not complied with Rule-19 of the CCA (CCA) Rules before passing the order of dismissal. Learned counsel further argues that the findings of the Enquiry Officer is perverse, as the case is of no evidence. Learned counsel further argues that the respondents have failed to consider that petitioner has not taken bribe of Rs.100/-, as alleged in the charge-sheet since, who made the viral video, whether it is verified or not, nothing has been mentioned in the enquiry report. Learned counsel further argues that on the date of alleged occurrence, the petitioner was having Rs.50/- in his pocket and out of which he purchased breakfast of Rs.30/- and the Owner of the Mess has returned him Rs.20/-, which was lying in his pocket. Learned counsel further argues that the Enquiry Officer has failed to prove that it is case of illegal gratification and only on the basis of surmises and conjectures, he came to the finding that perhaps video shows illegal gratification. 6. To buttress his arguments, learned counsel for the petitioner places heavy reliance on the following judgments: (I) Kuldeep Singh Vs. the Commissioner of Police & Ors. [ (1999) 2 SCC 10 ]; (II) Sher Bahadur Vs. Union of India & Ors. 6. To buttress his arguments, learned counsel for the petitioner places heavy reliance on the following judgments: (I) Kuldeep Singh Vs. the Commissioner of Police & Ors. [ (1999) 2 SCC 10 ]; (II) Sher Bahadur Vs. Union of India & Ors. [ (2002) 7 SCC 142 ]; & (III) Neeraj Dutta Vs. State (Govt. of NCT of Delhi), [2022 SCC Online SC 1724]. Submissions of learned counsel for the Respondents 7. Per contra, counter-affidavit has been filed. Learned counsel for the respondent-State vehemently opposes the contention of learned counsel for the petitioner and submits that during his duty hours the petitioner was found taking illegal gratification from truck driver and during the course of departmental enquiry, the charges levelled against the petitioner have been proved beyond any doubt based on the oral and documentary evidences adduced during the course of enquiry. Learned counsel further argues that the Enquiry Officer proved the article of charges leveled against the petitioner based on the oral and documentary evidences adduced during the enquiry and submitted his report on 09.01.2019. Thereafter, the Disciplinary Authority, after having agreed with the findings of the enquiry officer, issued 2nd show-cause to the petitioner. However, being not satisfied with the reply submitted by the petitioner, inflicted order of punishment, dismissed the petitioner from services. Thereafter, the petitioner challenged the order of dismissal before the appellate authority and the appellate authority also affirmed the order of punishment which does not require any interference. The petitioner also tested the order of dismissal before the Revisional Authority and lost there also. Learned counsel further argues that law is well settled that this Court sitting under Article 226 of the Constitution cannot reappraise the evidences that too when order of dismissal is affirmed by the Appellate Authority as well as by the Revisional Authority. Learned counsel accordingly submits that for the aforesaid facts and reasons, the writ petition is fit to be dismissed in limine. 8. To buttress his arguments, learned counsel for the petitioner places heavy reliance on the following judgments: (I) Union of India Vs. Dalbir Singh [ (2021) 11 SCC 321 ]; (II) Neeraj Dutta Vs. State (Govt. of NCT of Delhi), [2022 SCC Online SC 1724] Findings of the Court 9. 8. To buttress his arguments, learned counsel for the petitioner places heavy reliance on the following judgments: (I) Union of India Vs. Dalbir Singh [ (2021) 11 SCC 321 ]; (II) Neeraj Dutta Vs. State (Govt. of NCT of Delhi), [2022 SCC Online SC 1724] Findings of the Court 9. Having heard the rival submissions of learned counsel for the parties and having gone through the entire materials on record, this Court is of the considered view that no interference is warranted in the writ petition for the following grounds:- (I) It is not in dispute that the petitioner was posted at CISF Unit of BCCL, Dhanbad post on 27.10.2018 at first shift from 5.00 am to 13.00 pm, along with arms and ammunitions with another Constable. It is also not in dispute that a video was doing rounds in social media, showing the petitioner taking illegally gratification from one person. (II) Petitioner was charge-sheeted under Rule 36 of the CISF Rules, 2001, which the petitioner duly acknowledged and submitted his reply with supportive documents. Thereafter, enquiry proceeding was started, wherein, the petitioner was given ample opportunity to defend his case. (III) On the basis of evidence led by witnesses and the exhibits marked during the enquiry proceeding, wherein, the petitioner was given full opportunity to cross-examine them and defend his case, the enquiry officer came to the finding of guilt of petitioner. The disciplinary authority returned a finding considering enquiry report, which is based on the evidences, documentary as well as oral, that the misconduct committed by the petitioner has tarnished the image of Force at the national level, for which, the petitioner deserves severe punishment and thereby, the petitioner was dismissed from service. The appellate as well as revisional authority considering, every aspects of the matter rejected the appeal and revision filed by the petitioner, having found the punishment of dismissal just and fair. (IV) The contention of learned counsel for the petitioner that in the instant case, there is no evidence of proof of demand and acceptance of illegal gratification, is not tenable in the facts and situation of the present case. In this context, the Hon’ble Supreme Court in the case of Neeraj Dutta Vs. State (Govt. (IV) The contention of learned counsel for the petitioner that in the instant case, there is no evidence of proof of demand and acceptance of illegal gratification, is not tenable in the facts and situation of the present case. In this context, the Hon’ble Supreme Court in the case of Neeraj Dutta Vs. State (Govt. of NCT of Delhi) (supra), while referring to a question of law, as to how and under what circumstances, in absence of primary evidence of demand of illegal gratification, the conviction can be sustained under the Prevention of Corruption Act. Their Lordships have answered in para-74 of the judgment, which reads as under:- “74. What emerges from the aforesaid discussion is summarised as under: (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind: (i) if there is an offer to pay by the bribe-giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant. (ii) On the other hand, if the public servant makes a demand and the bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. (ii) On the other hand, if the public servant makes a demand and the bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act. (iii) In both cases of (i) and (ii) above, the offer by the bribe-giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1)(d)(i) and (ii), respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe-giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe-giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d)(i) and (ii) of the Act. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. (f) In the event the complainant turns “hostile”, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. The trial does not abate nor does it result in an order of acquittal of the accused public servant. (g) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Sections 13(1)(d)(i) and (ii) of the Act. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature.” (V) From perusal of the aforesaid points as summarized by the Hon’ble Apex Court vis-à-vis from perusal of facts and situation of the present case, it appears that circumstantial evidence is there. From the evidence of witnesses, it is crystal clear that the petitioner was shown in the video that he has taken illegal gratification from some unknown person at duty place. Hence, adverse inference can be drawn as money was found from the petitioner. Even if, no direct evidence of demand is there, but the circumstantial evidence to prove the guilt of the petitioner is there. It is well settled that many times some minor defects may remain in the investigation. If the mistakes are not glaring or the mistakes in the irrelevant document found then it will not affect the prosecution case. It is not necessary that taking illegal gratification of money should be proved by direct evidence. It may also be proved by circumstantial evidence. It is the general practice of corrupt public servants not to accept money directly by himself but through other persons like agents. Many times the corrupt public servants ask to deposit the money in the bank accounts of other persons. Many times such persons are not family members, relatives, friends but such persons are linked with the corrupt public servants. It is the general practice of corrupt public servants not to accept money directly by himself but through other persons like agents. Many times the corrupt public servants ask to deposit the money in the bank accounts of other persons. Many times such persons are not family members, relatives, friends but such persons are linked with the corrupt public servants. (VI) Admittedly guilt of the petitioner was proved in regular departmental proceeding and the findings of the Enquiry Officer was accepted by Disciplinary Authority and after providing ample opportunity of hearing, the order of punishment was inflicted against the petitioner, which was affirmed by the Appellate Authority, as well as Revisional Authority. No illegality has been pointed-out by the petitioner in the orders of Disciplinary Authority as well as Appellate Authority, as also the Revisional Authority. The petitioner belongs to a disciplined force and members of disciplined force are required to maintain discipline. Since guilt has been proved in regular departmental proceeding and based on that punishment order has been passed, this Court sitting under Article 226 of the Constitution shall not interfere in the order of punishment. 10. The Hon’ble Apex Court in the case of Railway Board v. Niranjan Singh [ (1969) 1 SCC 502 ] held that, “This Court held that the conclusion reached by the disciplinary authority should prevail and the High Court should not have interfered with the conclusion.” It was also observed by the Hon’ble Apex Court in case of Railway Board v. Niranjan Singh, reported that, “the High Court does not interfere with the conclusion of the disciplinary authority unless the finding is not supported by any evidence or it can be said that no reasonable person could have reached such a finding”. 11. In case of State of A.P. v. Chitra Venkata Rao [ (1975) 2 SCC 557 ] the Hon’ble Apex Court has held as under:- “21. ……………….. 11. In case of State of A.P. v. Chitra Venkata Rao [ (1975) 2 SCC 557 ] the Hon’ble Apex Court has held as under:- “21. ……………….. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion.” 12. In the case of Union of India versus P. Gunasekaran (supra), the Hon’ble Supreme Court has held that the High Court in exercise of its power under Article 226 and 227 of the Constitution of India shall not venture into re-appreciation of the evidence. Relevant para-12 and 13 is quoted herein below:- “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, reappreciating even the evidence before the enquiry 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 Articles 226/227 of the Constitution of India, shall not venture into reappreciation 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 Articles 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. 13. Under Articles 226/227 of the Constitution of India, the High Court shall not: (i) reappreciate 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; (i) go into the proportionality of punishment unless it shocks its conscience.” In the case of Director General of Police, Railway Protection Force and Others versus Rajendra Kumar Dubey, reported in 2020 SCC Online SC 954, the Hon’ble Supreme Court, by referring to the decision in the case of State of Andhra Pradesh versus S. Sree Rama Rao, at paragraph 33 has held as follows:- “33. In State of Andhra Pradesh v. S. Sree Rama Rao, a three judge bench of this Court held that the High Court under Article 226 of the Constitution is not a court of appeal over the decision of the authorities holding departmental enquiry against a public servant. In State of Andhra Pradesh v. S. Sree Rama Rao, a three judge bench of this Court held that the High Court under Article 226 of the Constitution is not a court of appeal over the decision of the authorities holding departmental enquiry against a public servant. It is not the function of the High Court under its writ jurisdiction to review the evidence, and arrive at an independent finding on the evidence. The High Court may, however interfere where the departmental authority which has held the proceedings against the delinquent officer are inconsistent with the principles of natural justice, where the findings are based on no evidence, which may reasonably support the conclusion that the delinquent officer is guilty of the charge, or in violation of the statutory rules prescribing the mode of enquiry, or the authorities were actuated by some extraneous considerations and failed to reach a fair decision, or allowed themselves to be influenced by irrelevant considerations, or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. If however the enquiry is properly held, the departmental authority is the sole judge of facts, and if there is some legal evidence on which the findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a writ petition.” 13. Further, in the case of Deputy General Manager (Appellate Authority) and Others versus Ajay Kumar Srivastava reported in (2021) 2 SCC 612 , it has been held 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. 14. At this stage, the judgments cited above by learned counsel appearing for the petitioner are of no help to the petitioner that there is no iota of evidence and the enquiry report is based on the surmises and conjectures. 15. Taking into consideration the entire records, I find that none of the grounds, as set forth, are made out in the case, so as to warrant interference by this Court. Punishment is also not shockingly disproportionate to the nature of misconduct. 16. 15. Taking into consideration the entire records, I find that none of the grounds, as set forth, are made out in the case, so as to warrant interference by this Court. Punishment is also not shockingly disproportionate to the nature of misconduct. 16. As a sequitur to the aforesaid observations, rules, guidelines, legal propositions and judicial pronouncements, I find no ground to interfere with the order of punishment dated 31.01.2019, as affirmed by the appellate order dated 20.05.2019 and the revisional order dated 23.10.2019. 17. The writ petition merits dismissal and the same is hereby dismissed.