Pratap vs State Of U.P. And 2 Others
2015 Latest Caselaw 5117 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Court No. - 1
 

 
Case :- WRIT - A No. - 52218 of 2012
 

 
Petitioner :- Bansh Lal Sankhwar
 
Respondent :- State Of U.P. & Others
 
Counsel for Petitioner :- Satya Prakash Pandey, Chandra Dutt,V.S.Chauhan
 
Counsel for Respondent :- C. S. C.
 

 
Hon'ble Surya Prakash Kesarwani,J.

1. Heard Sri V.S. Chauhan, learned counsel for the petitioner and Sri H.C. Pathak, learned standing counsel for the respondents.

2. This writ petition has been filed challenging the order of the Disciplinary Authority dated 26.7.2011, the order of the Appellate Authority dated 3.1.2012 and the order of the Revisional Authority dated 21.6.2012.

3. Learned counsel for the petitioner submits that on 30.4.2010 search was conducted by two teams at the official residential quarter of the petitioner and another Constable, Sri Akhilesh Kumar Pandey in which some cartridges of prohibited weapon were recovered. He submits that criminal case as well as departmental proceedings were initiated against both of them. Sri Akhilesh Kumar Pandey as well as the petitioner were acquitted in criminal trial. Sri Akhilesh Kumar Pandey as well as the petitioner were terminated and their appeal and revisions were dismissed by the competent authority against which they separately filed writ petitions before this Court. The writ petition no.60419 of 2012 filed by Sri Akhilesh Kumar Pandey was allowed by judgment dated 7.8.2015 and the matter was remanded to the disciplinary authority to take appropriate decision strictly in accordance with law. He, therefore, submits that since on similar set of facts the writ petition of Sri Akhilesh Kumar Pandey has been allowed and, therefore, the petitioner is also entitled for relief on the same terms and conditions.

4. Sri H.C. Pathak, learned standing counsel submits that the writ petition of Sri Akhilesh Kumar Pandey was allowed solely on the ground that the disciplinary authority terminated his services on 2.11.2011 on the ground of pendency of criminal case in which Sri Akhilesh Kumar Pandey was acquitted by the Additional Sessions Judge by judgment dated 5.6.2013. He submits that in the case of petitioner the disciplinary authority has not terminated his services on the ground of pendency of criminal case rather he considered the inquiry report, the explanation of the petitioner and evidences on record and observed that the charges in the criminal case and the disciplinary proceedings are different inasmuch as the charges in the departmental proceedings were that despite having knowledge of the rules petitioner has malafidly obtained cartridges during his duties and shown serious indiscipline, dereliction in duty and violated departmental rules. He submits that the appeal and revisional authority have also considered this aspect of the matter and recorded a finding that both the proceedings, namely, the criminal proceedings and the departmental proceedings are different. He, submits that the findings recorded in the order of punishment, order of the appellate authority and the order of the revisional authority are findings of fact based on evidence on record and there is no perversity. He submits that in view of the law laid down by Hon'ble Supreme Court in the case of Union of India v. P. Gunasekaran AIR 2015 SC 545, the impugned orders cannot be interfered and the writ petition deserves to be dismissed.

5. I have carefully considered the submission of the learned counsel for the parties and perused the record.

6. Briefly stated the facts of the present case are that, a search was conducted on 30.04.2010 on receipt of secret information in the official residential quarter no.83, Type-II, District Jhansi in which 30 live cartridges of 303 bore were recovered in presence of the petitioner. Consequently, F.I.R. was lodged in P.S. - Nawabad, being case Crime No.282 of 2010. In the said criminal case the petitioner was acquitted by the Court of Additional Sessions Judge by order dated 8.01.2013 giving benefit of doubt.

7. Departmental proceeding was initiated and preliminary fact finding report dated 24.11.2010 was submitted by the Circle Officer, City Jhansi in which petitioner's integrity was found doubtful, and was also found guilty of possessing prohibited cartridges, misconduct, serious indiscipline, dereliction in duty and violating the rules.

8. Consequently, proceedings was recommended to be initiated under Rule 14(1) of the Uttar Pradesh Subordinate Police Officers/Employees (Punishment and Appeal) Rules, 1991. The inquiry was conducted by the Inquiry Officer i.e. Additional Superintendent of Police, Jhansi, who submitted his detailed report dated 31.5.2011 after giving full opportunity to the petitioner.

9. Perusal of the inquiry report shows that the petitioner was confronted with the oral and documentary evidences and also cross examined the witnesses. The witnesses proved the charges. The petitioner specifically cross examined the witnesses, namely, Sri Brijendra Kumar Singh, Sub Inspector (Traffic), Police Line Jhansi, Constable 434 Civil Police Mohd. Javed, Constable 221 AP Mata Prasad, Constable 744 C.P. Shyam Sunder Reserved Inspector Police Line Jhansi, Sri Saryu Prasad, Constable 93 A.P. Nihal Singh, Constable 96 Prem Shanker Shukla, Constable 361 CP Thakur Das Bhasker, Sri Dinesh Singh C.O. G.R.P., Jhansi who was the then C.O. City Jhansi.

10. Petitioner specifically cross examined the witnesses with regard to the search conducted at his residential/official quarter and the recovery of 30 live cartridges. The witnesses proved in their evidences that the search was conducted in the residential Government Quarter of the petitioner and 30 live cartridges of prohibited bore were found from the quarter during course of checking. Copy of the inquiry report has been filed by the petitioner alongwith a supplementary counter affidavit filed on 1.12.2015.

11. In the inquiry, on the basis of evidence, the inquiry officer found the charges against the petitioner to be proved. The disciplinary authority, after giving opportunity to the petitioner passed punishment order dated 26.7.2011 whereby the services of the petitioner was terminated. He recorded a finding of fact that the petitioner was guilty of serious misconduct, indisciplined, dereliction in duty and violated the departmental rules. Consequently, invoking the provisions of Rule (4)(1)(ka) of the Rules he passed the order of termination of services of the petitioner.

12. Aggrieved with the aforesaid order the petitioner filed an appeal before the D.I.G., Jhansi, Zone-Jhansi, who considered the submissions of the petitioner and dismissed his appeal by a reasoned order dated 3.1.2012. Aggrieved with this order the petitioner filed a revision before the Inspector General of Police, Zone - Kanpur, U.P., who considered the submissions of the petitioner and evidences on record in detail and passed a reasoned order dated 21.6.2012. He found no error in the order of punishment and the appellate order. Aggrieved with these orders the petitioner has filed the present writ petition.

13. In the case of Akhilesh Kumar Pandey, this Court allowed the writ petition and remanded the matter to the disciplinary authority on the only ground that the disciplinary authority terminated his services on 2.11.2011 on the ground of pendency of criminal case. The facts of the present case are entirely different. In the present case the disciplinary authority, the Appellate authority as well as the revisional authority considered in detail the inquiry report, evidences in connection with the charges and found proved the charges of serious misconduct and dereliction of duty etc. The findings recorded in this regard are findings of fact based on consideration of relevant evidences and circumstances on record. Thus the judgment in case of Akhilesh Kumar Pandey (supra) as relied by learned counsel for the petitioner is clearly distinguishable and does not help the petitioner.

14. In the case of Union of India (supra), Hon'ble Supreme Court considered the scope of interference by the High Court in writ petitions under Article 226/227 of the Constitution of India in matters of disciplinary proceedings and held as under:

"13. 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, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. 1 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 Article 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.

Under Article 226/227 of the Constitution of India, the High Court shall not:

(i). re-appreciate the evidence;

(ii). interfere with the conclusions in the enquiry, in 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."

15. In the present set of facts, perusal of the impugned orders clearly shows that the inquiry was held by the competent authority as per procedure prescribed and there was no violation of Principles of Natural Justice. The conclusion drawn in the impugned order are based on consideration of relevant materials and evidence. This Court while exercising powers under Article 226/227 of the Constitution of India can not reappreciate the evidence and can not interfere with the conclusions in the inquiry if it has been conducted in accordance with law. It can not go into adequacy of evidence or the reliability of the evidence. It can not interfere if the findings are based on legal evidences. It can not go into the proportionality of punishment unless it shocks its conscience. The High Court while exercising powers under Article 226 of the Constitution of India is not a Court of appeal. It can not sit over the decision of the authorities holding a departmental inquiry against a public servant unless the inquiry is vitiated on account of it being not competent or the inquiry is not held according to the procedure prescribed or it has been held in violation of the principles of natural justice or the conclusions drawn are based on irrelevant or extraneous consideration or the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding. The High Court can interfere if it is found that the department 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 conclusion by some considerations extraneous to the evidence and the merits of the case 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, or on similar grounds.

16. Since in the present set of fact the inquiry has been properly held and the impugned orders have been passed after considering the relevant evidence and material on record after following due procedure of law and as such the impugned orders and the findings of fact recorded therein cannot be interfered.

17. In the case of State of Andhra Pradesh and others v. S. Sree Rama Rao, AIR 1963 SC 1723, Hon'ble Supreme Court considered the scope of interference by the High Court under Article 226 of the Constitution of India in disciplinary matters and held as under:

"7.... The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly 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, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their 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 proceeding for a writ under Article 226 of the Constitution."

18. In the case of State of Andhra Pradesh and others v. Chitra Venkata Rao, AIR 1975 SC 2151 paragraphs (21 to 24) Hon'ble Supreme Court held as under:

"21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao ( AIR 1963 SC 1723) . First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. 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. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their 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 proceeding for a writ under Article 226.

22. Again, this Court in Railway Board, representing the Union of India, New Delhi v. Niranjan Singh (AIR 1969 SC 966) said 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. In Niranjan Singh case this Court held that the High Court exceeded its powers in interfering with the findings of the disciplinary authority on the charge that the respondent was instrumental in compelling the shut-down of an air compressor at about 8.15 a.m. on May 31, 1956. This Court said that the Enquiry Committee felt that the evidence of two persons that the respondent led a group of strikers and compelled them to close down their compressor could not be accepted at its face value. The General Manager did not agree with the Enquiry Committee on that point. The General Manager accepted the evidence. This Court said that it was open to the General Manager to do so and he was not bound by the conclusion reached by the committee. This Court held that the conclusion reached by the disciplinary authority should prevail and the High Court should not have interfered with the conclusion.

23.The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an appellate court. The findings of fact reached by an inferior court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal. See Syed Yakoob v. K.S. Radhakrishnan (AIR 1964 SC 477) .

24. The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do."

These principles have been succinctly summed-up by the living legend and centenarian Justice V. R. Krishna Iyer in State of Haryana and another v. Rattan Singh (1977) 2 SCC 491. To quote the unparalled and inimitable expressions:

"4..... in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case-law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. ..."

19. In the State of Haryana and another v. Rattan Singh AIR 1977 SC 1512, Hon'ble Supreme Court summarised the principles with regard to interference by the High Court under Article 226 of the Constitution of India in the matters of orders passed in disciplinary proceedings and held as under:

"4..... in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case-law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. ..."

20. Similar principles has been laid down by Hon'ble Supreme Court in the case of Chennai Water Supply and Sewarage Board v. T. T. Murali Babu, AIR 2014 SC 1141, B.C. Chaturvedi v. Union of India and others (1995) 6 SCC 749, Union of India and another v. G. Ganayutham (1997)7 scc 463, Om Kumar and others v. Union of India (2001) 2 SCC 386, Coimbatore District Central Co-operative Bank v. Coimbatore District Central Co-operative Bank Employees Association and another (2007)4 scc 669 and Chairman-cum-Managing Director, Coal India Limited and another v. Mukul Kumar Choudhuri and others (2009)15 SCC 620.

21. Thus the catena of decisions of Hon'ble Supreme Court as aforenoted leaves no manner of doubt that on the facts of the present case the impugned order passed by the competent authorities cannot be interfered.

22. In view of the above discussion, I do not find any error in the impugned order, writ petition is wholly misconceived and, therefore, deserves to be dismissed.

23. In result, the writ petition fails and is hereby dismissed.

Order Date :- 7.12.2015/vkg