M.T. Mohd Irfan vs Kala Nidhi Naithani, Senior ...
2023 Latest Caselaw 27761 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


?Neutral Citation No. - 2023:AHC:195093
 
Court No. - 9
 

 
Case :- CONTEMPT APPLICATION (CIVIL) No. - 4315 of 2020
 

 
Applicant :- M.T. Mohd Irfan
 
Opposite Party :- Kala Nidhi Naithani, Senior Superintendent Of Police
 
Counsel for Applicant :- Qaisar Kamal Ansari
 
Counsel for Opposite Party :- S.C.
 

 
Hon'ble Rohit Ranjan Agarwal,J.

The writ Court on 20.05.2019 in Writ-A No. 20707 of 2010 had passed the following order:-

"Heard Sri Prathmesh Upadhyay, holding brief of Dr.C.P. Upadhyay, learned counsel for the petitioner and learned Standing counsel.

Perused the record.

The termination order has been passed on the basis of an enquiry report dated 16.6.2008.

Perusal of the record indicates that charge sheet was served on the petitioner on 23.2.2008 and the charge against the petitioner was that he had used mobile no.9868626696 of one Junaid Ali to talk to one Sharif, an accused in Case Crime No.988 of 2007 under section 5/8, Cow Slaughter Act and in the intervening night 23/24.9.2007 he talked to Sharif several times, which proved his relation with accused Sharif and also his careless attitude in discharge of his duties, which resulted in the incident on 29.9.2007.

Three witnesses were produced by the prosecution to support their version in the charge sheet. One Sri Satya Pal Singh, the Circle Officer, P.S.Shahibabad was produced to prove the preliminary inquiry report dated 24.1.2008, against the petitioner. Head constable Dhruv Singh, and Constable Bhanu Pratap Singh were also produced to prove the said charge against the petitioner.

It is pointed out by the learned counsel for the petitioner that there was absolutely no evidence before the enquiry officer to conclude that the petitioner had talked to the accused Sharif from mobile no.9868626696 which was in the name of his nephew Junaid Ali. Submission is that the enquiry had proceeded on surmises and conjectures.

Learned Standing counsel, on the other hand, defended the order impugned with the plea that the petitioner had admitted in the preliminary enquiry that mobile no.9871346224 issued in the name of Naushad was being used by Sharif, a named accused in Case Crime no.988 of 2007.

Submission is that sufficient opportunity had been provided to the petitioner by the enquiry officer, and the correctness of the conclusion drawn by the enquiry officer cannot be examined in the limited scope of judicial review under Article 226 of the Constitution of India.

Submission is that it is not possible for the Court to take alternative view on the report submitted by the enquiry officer within the limited scope of judicial review. The part of the enquiry report which was placed before the Court to assert that preliminary enquiry proved the guilt of the petitioner reads as under:-

"?????? 02.05.08 ?? ??????? ?????? ???? ??????? ???? ?????????????? ?????? ???? ????????? ?? ??? ?????? ???? ???? ?? ?????? ???? ??? ????? ?? ?????????? ???? ?? ????? ?? ??????? ??? ???? ?????? ?0 9868926696 ?? ????? ?? ???????? ???? ????? ??????? ???? ????????? ?? ??0?0??0 988/07 ???? 5/8 ???? ??????? ?????? 29.09.07 ??? ??????? ?? ?? ?????? ??0 9871346224 ?? ????? ??? ??? ???? 55 ??? ??????? ??? 2007 ??? 25 ??? ?????? ?? ???? ?????????? ???? ???? ?????? ?? ??? ?? ?????? 24.01.2008 ?? ???????? ?? ??? ???"

These submissions of learned Standing counsel would not detain the Court for long, in as much as, it is found that there is absolutely no evidence before enquiry officer to reach at the conclusion that the petitioner had talked to Sharif, a named accused in Case Crime No.988 of 2007. The only evidence before enquiry officer was the preliminary enquiry report dated 24.1.2008. It is noteworthy that the enquiry officer who conducted preliminary enquiry though was produced to prove his report which records alleged admission of the petitioner of talking to Sharif, but the said part of the preliminary enquiry report was not put to the petitioner so as to cross examine him on the alleged admission made therein.

The mere fact that the petitioner had cross examined the officer who conducted preliminary enquiry, would not be a ground to say that the contents of the preliminary enquiry report was admitted to the petitioner or admission of the petitioner made during the course of preliminary enquiry stood proved.

It is a case where the petitioner had categorically denied the charges levelled in the charge sheet dated 23.2.2008 and participated in the departmental enquiry.

Reasonable opportunity contemplated by Article 311(2) means "Hearing" in accordance with the principles of natural justice under which one of the basic requirements was that all evidences in the departmental enquiry shall be supplied to the delinquent. Where a statement or admission previously made by the delinquent during the course of preliminary enquiry or investigation, is proposed to be relied in the departmental proceedings, the law laid down is that a copy of that statement should first be supplied to the delinquent and the alleged admission, if any, shall be put to him with the disclosure that it may be used against him and, thereafter, the delinquent should be given opportunity to cross examine the officer who conducted preliminary enquiry. The alleged admission made during the course of preliminary enquiry, thus, was required to be put to the delinquent to record, specifically, his denial or acknowledgment of having made that statement or admission.

Even otherwise, there is no whisper of any admission of the petitioner in the regular enquiry report.

Apart from the aforesaid preliminary enquiry report, there is absolutely no other evidence of involvement of the petitioner in the crime in question and there was no witness to prove that the petitioner had conversation with Sharif or he had talked to Sharif on the mobile no.9871346224 of Naushad or Naushad had any connection with Sharif.

It is settled law that any evidence, if used against the delinquent, has to be specifically put to him during the course of enquiry. Power of the Court is limited to interfere in exercise of judicial review but if the finding of 'guilt' is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.

Reference be made to the observation in the judgment of Apex Court in case of Kuldeep Singh vs The Commissioner of Police and ors, quoted as under:-

"A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with."

For the aforesaid, the enquiry report is found vitiated, and consequently the decision taken by the disciplinary authority to terminate the services of the petitioner as also the orders passed in appeal and revision by respondent nos.3 and 2; respectively are quashed.

The petitioner is entitled to reinstatement with all consequential benefits including all the arrears of pay upto date which shall be paid to him within a period of three months from today. The exercise for reinstatement of the petitioner shall be completed within a period of three weeks from the date of submission of certified copy of this order.

The writ petition is allowed. No order as to costs"

From perusal of the order, it is clear that Court had held that applicant was entitled to be reinstated with all consequential benefits including all the arrears of pay upto date.

A compliance affidavit has been filed by the State wherein it has been stated that applicant has been reinstated and all the consequential benefits have been paid to him under various heads.

In para no. 12, it has been stated that Rs.38,18,625/- has been paid under the heading of salary and arrears. Further, Rs.5,55,691/- has been paid on 03.12.2022 as consequential benefits.

Learned counsel for the applicant states that certain payments including H.R.A., P.A., K.M.A. and driving allowance has not been paid.

The order of writ Court was to the extent to reinstate the applicant along with all consequential benefits which according to State has been paid and in para no. 12, it has been categorically stated that amount has been paid to the applicant. In case, any amount as claimed by the applicant is left over, he may seek remedy so available to him under law.

In view of said fact, as the order of writ Court has been substantially complied with, the contempt application is rendered infructuous and the same stands dismissed.

Contempt notice stands discharged.

Order Date :- 10.10.2023

V.S.Singh