HON'BLE SRI JUSTICE D.V.S.S.SOMAYAJULU
W.P.No.20218 of 2020
ORDER:
This writ petition is filed questioning the punishment imposed on the petitioner withholding two increments of pay without cumulative effect.
This Court has heard Sri M.Vijaya Kumar, learned counsel for the petitioner and learned Government Pleader for Services-I.
Learned counsel for the petitioner argues that the punishment imposed on the petitioner is totally contrary to the evidence and the conclusions were reached without any evidence linking the petitioner to the allegations made. Learned counsel points out that a joint enquiry was conducted against the petitioner and others. The allegation against the petitioner is that he was hand in glove with the first accused and also had monetory transactions with the first accused. Learned counsel points out that the evidence of the witnesses which is recorded by the respondents did not support the case of the department. He also specifically argues that many of the allegations made against the petitioner and others are based upon certain entries contained in a spiral note book. However, he points out that this basic document/spiral note book was not produced during the course of the enquiry for it to be relied upon as a 2 material document. The same is mentioned in the course of the order, but it is not filed or marked as a document. Learned counsel also relies upon the two judgments reported in Roop Singh Negi v. Punjab National Bank and others1 and Nirmala J.Jhala v. State of Gujarat and another2. Relying on these two judgments, learned counsel for the petitioner argues that even if the Evidence Act is not applicable to the departmental proceedings still, the basic principles mentioned therein are applicable and that there must be some proof available before a petitioner or any other delinquent is found guilty. He points out by relying on the depositions which are filed as material papers that witnesses themselves did not speak of the finding any transactions between the petitioner and the first accused. Therefore, he submits that since the findings are based on no evidence, they should be set aside. He also points out that the order of the disciplinary authority which is impugned does not contain "reasons" as are necessary to prove the charges. The reliance of the preliminary enquiry report and the final enquiry report is also questioned by the learned counsel for the petitioner.
In reply to this, learned Government Pleader for Services-I argues that the enquiry report is a detailed report. It considered all the facts and evidence that is available. He also argues that the quality of evidence that is necessary is 1 (2009) 2 SCC 570 2 (2013) 4 SCC 301 3 only preponderance of probabilities and not proof beyond reasonable doubt. He submits that based on the available material, the Government only decided to impose a penalty of withholding of two increments in pay and that therefore, there is no attempt of victimizing the petitioner or penalising the petitioner without adequate reason. He also submits that there is a provision for revision and that a writ is not maintainable. He submits that the power of this Court to interfere in such matters is limited and this Court should not substitute its finding for the Enquiry Officers finding or act like an appellate authority. In conclusion he submits that the punishment was imposed after a detailed enquiry in which the petitioner had an opportunity to participate. Therefore, he submits that there is no error in this procedure.
This Court after hearing both the learned counsel notices that the main charge against the petitioner is that he has advanced a loan to first accused, who was running a syndicate of alcohol and wine shops and received interest there on from him. In the charge itself, there is a reference to a spiral note book which is seized in the house of first accused which allegedly shows that the petitioner received interest from the said accused. Therefore, the crux of the issue is the entry/entries in these note books. As rightly pointed out by the learned counsel for the petitioner; this spiral note book is not a document which has been marked before the enquiry officer. Table 2 of the enquiry report gives 4 the list of documents which are marked. In this list, the spiral note book is not present. This is a critical factor. Apart from this, when it comes to the findings against the petitioner, the Enquiry Officer relied upon the preliminary enquiry report. In the case of Nirmala J.Jhala (2 supra), Hon'ble Supreme Court held that preliminary report cannot be relied upon in the course of domestic enquiry proceedings as the delinquent is not associated with it and cannot cross- examine the persons examined in it. No opportunity to cross- examine those witnesses is given to a delinquent. Therefore, the Hon'ble Supreme Court held that it amounts to failure of rules of natural justice. The evidence of the witnesses which are filed as material documents also go to show that the spiral notebook is not actually seized or exhibited. A mediators report is also drafted in the ACB Office only (P.W.28). This is reiterated by P.W.27 also. P.W.2 also state that he does not know the contents of Exs.P.26, 27 and 29 and except attesting the signature of the witness states that he does not know the contents. P.W.3 is also stated in his cross-examination that he does not know if the charged officers have leant money to first accused. Lastly, the evidence of P.W.37 who is the Police Officer clearly mentioned in his cross-examination that the spiral note book seized from the house of first accused is not produced now. It is also stated that the report of the forensic laboratory containing the report on any writing is not filed before the Enquiry Officer. 5 He also mentions that he has not seized any incriminating material regarding the loans from the house of the petitioner and another. Lastly, he submits that the statements of first accused were not recorded separately, but his provision was incorporated in the loan.
In these circumstances, this Court has to hold that the Enquiry Officer did not consider the evidence at all in its proper perspective. While the Evidence Act, in all its rigour may not be applicable, still the fact remains that preponderance of probabilities must be present or point a finger at the delinquent.
In the case on hand, neither the lending of the money nor the collection of interest is borne out by any record. The judgments of the Hon'ble Supreme Court of India which are relied on by the learned counsel for the petitioner are squarely applicable to the facts and circumstances of the case. An order in a quasi judicial proceeding like a departmental enquiry has to be based upon evidence and reasons. The evidence must be considered and discussed before the conclusions are reached. The conclusions must always be supported by reasons. In the case on hand, the conclusions against the present petitioner are not at all supported by "reasons". The evidence of the witnesses particularly, the lack of the spiral note book has been overlooked by the Enquiry Officer. It is a critical piece of evidence which has not been filed at all in the proceedings. 6
In the absence of such evidence, this Court has to hold that neither lending of money to first accused nor the collection of interest from him are actually borne out by the record. Therefore, this Court has to hold that the enquiry report is vitiated by serious lapses/lacunae. The imposition of the penalty is not correct in the light of the available evidence. The oral and documentary evidence introduced do not support the case of the State against the petitioner. In the circumstances, the imposition of any penalty is incorrect and contrary to law. The two judgments of the Hon'ble Supreme Court fully apply to the facts of this case.
Hence, the writ petition is therefore allowed. The punishment imposed against the petitioner vide G.O.Rt.No.674, dated 25.08.2020 is hereby set aside. No order as to costs.
As a sequel, the miscellaneous petitions if any pending shall stand dismissed.
___________________________ D.V.S.S.SOMAYAJULU, J Date: 22.10.2021 KLP