* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ RSA No.132/2009
% 4th February, 2014
HARI MILAN GOSWAMI ......Appellant
Through: Mr. P.S. Vats, Advocate with Mr.
Sandeep Gupta, Advocate.
VERSUS
UNION OF INDIA ...... Respondent
Through:
CORAM:
HON'BLE MR. JUSTICE VALMIKI J.MEHTA To be referred to the Reporter or not?
VALMIKI J. MEHTA, J (ORAL)
1. This Regular Second Appeal impugns the concurrent judgments of the courts below; of the trial court dated 18.12.2004 and the appellate court dated 8.9.2006; by which the suit of the appellant/plaintiff for setting aside the orders passed by the departmental authorities was dismissed.
2. In the suit, the relevant issues which were framed were issue Nos.1 and 2 and which read as under:-
"1. Whether the order No.5 BN-12/74-9048/20/30 November 74 and order No.5 BN/B/PRO-4/74/75/433/1334 dated 10.2.75 is illegal and without jurisdiction? OPD RSA No.132/2009 Page 1 of 7
2. Whether the plaintiff is entitled to refer to cost of Rs.11,495/- OPP"
3. With respect to these issues the trial court has given the following findings and conclusions:-
"Issues No.1 & 2:-
The onus to prove both the issues was on the plaintiff. In support of his case, plaintiff has examined only himself as PW1. In his chief examination, PW1 has merely deposed that he was not communicated the grounds and reasons on the basis of which the inquiry was initiated against him although he was supplied charge sheet. The plaintiff is challenging the removal order dt. 20/20/11/74 and the order dt. 10.9.75 passed by Appellate Authority on the ground that they are illegal and un-constitutional. Although in the plaint, plaintiff has raised certain grounds of challenge like non providing of opportunity of hearing during inquiry proceedings to the plaintiff, violation of principles of natural justice, non providing of defence assistance etc but the said grounds of challenge have not been proved by plaintiff by way of evidence. PW1 even did not dare to say in his chief examination that defence assistance was not provided to him or that he was not afforded proper and reasonable opportunity of hearing during the inquiry proceedings. It is well settled law that any pleading not substantiated by evidence on record, cannot be said to be proved. Hence, the plaintiff has failed to discharge the burden of proving both the grounds of challenge to the impugned orders as mentioned by plaintiff in the plaint is that he was appointed as Chief Security Officer but he was removed from the services by Assistant Security Officer and therefore, the orders are void on the said ground alone. However, Ld. Cl for deft had filed copy of Notification dt. 10.9.59 containing RPF Rules 1959. Appendix-I to the said Rules shows that Assistant Security Officer was empowered to appoint Sr. Rakshak and Rakshak. Not only this, Schedule-II of the said Rules further provides that Assistant Security Officer has got power to remove Senior Rakshak and Rakshak under RPF Rules 1959. Hence, the said grounds of challenge raised on behalf of plaintiff, are without any merit and are therefore, rejected. In the cross examination of DW1 Sh. P. Nagarajan, there is not even RSA No.132/2009 Page 2 of 7 a suggestion on behalf of the plaintiff that principles of natural justices were not followed or that plaintiff was not afforded reasonable opportunity of hearing during inquiry proceedings. The whole of cross examination revolved around the production of original inquiry file and therefore, it cannot be said that plaintiff has been able to prove his case even in the evidence of defendant. Since the initial burden of proving the issues was on the plaintiff which as already discussed above, the plaintiff has failed to discharge, thus it cannot be said that the plaintiff is able to prove his case. Even otherwise, it is well settled law that the Courts are not sitting in an appeal over the decision made by disciplinary authority in departmental inquiry and the scope of interference is very limited. In 112 (2004) DLT 657, and 109 (2004) DLT 868, it has been held that the Court is not to weigh merits and de-merits of rival versions and is not to re-appreciate evidence. If on the evidence on record, the view taken is possible then that would be end of the matter as far as the challenge to the finding recorded by inquiry officer is concerned. Plausibility of other view is no ground for judicial interference to up set the findings of the inquiry officer. Hence, both the issues are decided against the plaintiff." (underlining added)
4. A reading of the aforesaid observations of the trial court show that the appellant/plaintiff failed to prove in his evidence that there was violation of principles of natural justice or he was not provided defence assistance etc etc. Also, in the cross-examination of DW-1 there is not even a suggestion on behalf of the appellant/plaintiff that principles of natural justice were not followed or that the appellant/plaintiff was not afforded reasonable opportunity in the enquiry proceedings. I may note that in the present case after enquiry officer was appointed, enquiry proceedings were conducted, appellant was found guilty, show cause notice was thereafter RSA No.132/2009 Page 3 of 7 issued by the disciplinary authority, appellant contested those proceedings and ultimately the order was passed removing the appellant from services.
5. Even the appellate Court in its impugned judgment has made similar observations in paras 9 and 10 of the impugned judgment and which read as under:-
"9. Moreover, even subsequently, request of the plaintiff in this regard was considered at length by learned Civil Judge. It was also noticed by learned Civil Judge that parties did not dispute regarding dates of issuance of charge-sheet and also replies submitted by the plaintiff thereto. There was no dispute regarding appointment of Inquiry Officer and plaintiff himself had exhibited documents including charge-sheet and explanation to the charge-sheet and order passed by competent authority as well as copy of appeal. Even Show Cause Notice issued by the disciplinary authority on the basis of inquiry report and replies were filed on judicial record. Thus all the important documents were already on judicial record and plaintiff has not been able to show as to why the entire file should have been retained on the judicial record more so when he himself did not deem it fit and proper to summon the file when the case was fixed for his own evidence. He knew about the inquiry proceedings and he could have made request at the earliest. However, even if due to some reasons, he could not move application in this regard at the earliest, it was still incumbent on his part to show as to how that domestic inquiry file would have a direct bearing when most of the important documents are already on record and have already been proved. Plaintiff had knocked the doors of Civil Court with clarity of mind. He has challenged his removal on the grounds that he had been removed by an officer who was inferior in rank as compared to appointing authority. He claimed that he was not given copy of statement of allegations and no fresh charge-sheet was served upon him and the previous charge-sheet was general, vague and unspecific. He also claimed that he was not afforded personal hearing by the appellate authority. I have also seen his testimony and in his cross-examination, he admitted that there were charges of negligent discharge of duties and he also admitted that statements of charges and RSA No.132/2009 Page 4 of 7 statement of allegations were found mentioned in Ex.PW1/1. Thus, he was duly communicated about the grounds and nature of allegations against him and, therefore, his grouse in this regard is totally unjustified. In his examination-in-chief, plaintiff simply claimed that he had been terminated wrongly and without conducting fair enquiry and he was not supplied with grounds of charge-sheet. Learned Civil Judge also noticed that pleadings were not substantiated by any evidence and therefore, plaintiff had failed to discharge the burden of proving both the issues. Plaintiff did not come up with specific deposition in this regard when he entered into witness box. He did not claim that defence assistance was not provided to him or that he was not given proper or reasonable opportunity to defend himself in inquiry proceedings. In such type of scenario even if domestic inquiry file had been called, it would not have helped the cause of plaintiff from any angle. Plaintiff has also challenged removed order claimi9ng that he had been appointed by Chief Security Officer but he was removed by Assistant Security Officer and, therefore, removal order was bad.
However, learned Civil Judge noticed that by virtue notification dated 10.09.1969, Assistant Security Officer was empowered to appoint Senior Rakshak and Rakshak and was also empowered to remove Senior Rakshak and Rakshak. Union of India has examined Sh. P. Nagarajan and he also claimed that he was fully conversant about the case and claimed that he knew about the facts on the basis of file and record available. No suggestion was put to him that the inquiry was not conducted in just and fair manner. No suggestion was put to him that principles of natural justice were not followed. I have seen trial court record very carefully and it becomes apparent that plaintiff had been afforded due opportunity to present his defence and Enquiry report Ex.DW1/3 also confirms the same. Even the Disciplinary Authority concurred with the enquiry report and thereafter, show cause notice was issued why he should not be removed. Plaintiff at that time also raised several points and those were again discussed. Thus, it can hardly be said that plaintiff had not been given due opportunity or that inquiry was held against the principles of natural justice.
10. The Court will be slow to interfere in such matters relating to administrative function unless decision is tainted by any vulnerability like illegality, irrationality and procedural impropriety and not adhering to the principles of natural justice. Whether action falls within any of the categories has to be established. Mere bald assertion RSA No.132/2009 Page 5 of 7 in that regard would not be sufficient. On careful perusal of the entire record, I feel that learned Civil Judge has arrived at just and fair conclusion and no fault can be found in his findings. Plaintiff has failed to prove his case when tested on the yardstick of preponderance and probabilities and even otherwise it is settled law that scope of interference by Court of law in the findings of inquiry officer is very limited. Judicial review of administrative action is though feasible and same has its application to its fullest extent in even departmental proceedings yet only in those cases where it is found that the recorded findings are based on no evidence or the findings are totally perverse or legally untenable and that principles of natural justice were apparently flouted. Hence, in the case in hand, plaintiff has failed to prove his assertions." (underlining added)
6. The law with respect to challenge to enquiry proceedings is now well settled. Unless and until there is found either violation of principles of natural justice or findings are perverse or against the provision of law, the orders passed by the departmental authorities cannot be interfered with. In view of the aforesaid reasonings and conclusions of the courts below, I do not find any reason to interfere with the findings and conclusions of the courts below and no substantial question of law arises.
7. Counsel for the appellant sought to argue that the courts below have committed an error in not asking for producing the relevant departmental file. I note that the trial court has already noted in paras quoted above that whatever were the main documents of the departmental proceedings were already before the court. Also, I agree with the courts below that it was upon the plaintiff to prove his case by summoning the RSA No.132/2009 Page 6 of 7 relevant file at the relevant stage, and which the appellant/plaintiff failed to do.
8. In view of the above, no substantial question of law arises for this appeal to be entertained under Section 100 CPC. Dismissed.
FEBRUARY 04, 2014 VALMIKI J. MEHTA, J.
Ne
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