Ejaj Ahmed Khan vs Union Of India & Ors
2023 Latest Caselaw 2363 Cal

                     IN THE HIGH COURT AT CALCUTTA

                     (Constitutional Writ Jurisdiction)

                             APPELLATE SIDE

Present:

The Hon'ble Justice Krishna Rao



                           WPA 12140 of 2001

               CAN 1 of 2005 (Old CAN No. 851 of 2005)



                             Ejaj Ahmed Khan

                                  Versus

                           Union of India & Ors.



           Mr. K.B.S. Mahapatra
           Mr. G.C. Chakraborty
           Mr. Kashinath Bhattacharyya
                                                .....For the Petitioner
           Mr. Anirban Mitra
           Mr. Santosh Kumar Pandey
                                                .....For the U.O.I.


Heard on                : 05.01.2023, 19.01.2023 & 09.02.2023

Judgment on             : 06.04.2023

Krishna Rao, J.: -


     The petitioner has filed the instant writ petition challenging the

departmental proceeding and the orders passed by the Disciplinary
                                      2


Authority and the Appellate Authority wherein punishment of removal from

service was imposed upon the petitioner.


      By a Memorandum dated 29th September, 1999, an Article of charges

was served upon the petitioner on the allegation that on 21st September,

1999 at about 1900 hours, the petitioner being a Constable of Central

Industrial Security Force Unit, NRL, Numaligarh had abused and assaulted

Inspector (Executive), N.C. Gorian along with Constable Harender Kumar as

a result of which Inspector N.C. Gorian sustained injury. On receipt of the

Memorandum of Charge, the petitioner has submitted his reply denying the

charges levelled against him and accordingly the Disciplinary Authority had

appointed Enquiry Officer to enquire into the charges levelled against the

petitioner. During the preliminary hearing, the petitioner had objected for

appointment of Shri KVK Sriram, Assistant Commandant as Enquiry Officer

and requested to appoint another Enquiry Officer. Considering the request

made by the petitioner, another Enquiry Officer namely, Jagdish Singh,

Assistant Commandant, CISF unit was appointed, in place of Shri K.V.K

Sriram.


      The petitioner had participated in the proceeding and during the

proceeding, nine witnesses and ten documents were exhibited on behalf of

the prosecution and the petitioner has adduced five witnesses as defence

witness. On completion of enquiry, the Enquiry Officer had submitted a

report to the Disciplinary Authority and the said enquiry report was duly

served to the petitioner and the petitioner had submitted his reply to the

enquiry report. After considering the enquiry report and the reply submitted
                                         3


by the petitioner, the Disciplinary Authority had passed an order on 26th

June, 2000 by imposing punishment of removal of the petitioner from

service from the date of receipt of the order.


      Being aggrieved with the order of the Disciplinary Authority, the

petitioner had preferred an appeal before the Appellate Authority and on

20th December, 2000, the Appellate Authority had rejected the appeal

preferred by the petitioner. The petitioner had preferred a review application

but a review application was also dismissed on 24th April, 2001.


      Mr. K.B.S. Mahapatra, learned Advocate representing the petitioner

submits that there are several flaws in the enquiry and the Enquiry Officer

has conducted enquiry by adopting biasness and malafide attitude and the

Enquiry Officer has not recorded the evidence in a proper manner.


      Mr. Mahapatra       submits that while conducting the enquiry, the

Enquiry Officer had recorded the statement which had not been deposed by

the witnesses during the enquiry and he did not record the statements

which were against the prosecution. He submits that as per the list of

witnesses, only five witnesses were cited but the Enquiry Officer had

examined the witnesses who were not named in the list of witnesses and

were also not present at the place of occurrence.


      Mr. Mahapatra submits that the complainant was medically examined

and x-ray was also done but as per the x-ray report, there is no mark of

assault or injury and the complainant was normal. He submits that the
                                       4


Enquiry Officer has not allowed the petitioner to engage defence assistant

during the course of enquiry in spite of request made by the petitioner.


      Mr. Mahapatra submits that the statements of the witnesses recorded

during the enquiry are contradictory to each other but the Enquiry Officer

has not considered the contradictory statement made by the witnesses. He

submits that as per the chargesheet only three documents have been relied

by the prosecution but during the evidence the enquiry officer has exhibited

altogether 10 documents which are not the listed documents of the

chargesheet. He submits that the documents which were exhibited are

neither the certified document nor corroborated by examining the author or

competent authority of the said document.


      Mr. Mahapatra submits that the petitioner has produced defence

witnesses and the witnesses have categorically stated that on 21st

September, 1999, no such incident of assault had occurred with the

complainant at the alleged date and time and the witnesses were present at

the Barrack but the Enquiry Officer has not considered the evidence of the

defence witnesses. He further submits that if such incident of assault had

occurred as to why no FIR is initiated before the Police Authority for proper

investigation.


      Mr. Mahapatra submits that the Enquiry Officer had conducted

enquiry without any Presenting Officer as the Disciplinary Authority had not

appointed any Presenting Officer and thus the Enquiry Officer has acted as

prosecutor. He further submits that the Enquiry Officer has not allowed the

petitioner to engage any defence assistant.
                                         5


Mr. Mahapatra relied upon the following judgements :


            i.     2011(2) CHN (CAL) 498 (Krishna Choudhury -vs- State of
                   West Bengal).
            ii.    (2010) 2 SCC 772 (State of Uttar Pradesh -vs- Saroj Kumar
                   Sinha).
            iii.   (2009) 2 SCC 570 (Roop Singh Negi -vs- Punjab National
                   Bank).
            IV.    (2004) 6 SCC 254 (Kusum Ingots & Alloys Ltd -vs- Union of
                   India and Ors.).
            V.     2016 LAB I.C.198 (Rakesh Kumar -vs- Union of India and
                   Others).
            VI.    AIR 2002 SC 3030 (Sher Bahadur -vs- Union of India and
                   Others).

      Mr. Anirban Mitra, learned Advocate representing the respondents

submits that the petitioner being the Constable of the CISF has abused and

assaulted his Senior Officer, Inspector (Executive) along with Constable

Harender Kumar as a result of which the Inspector has sustained injury and

accordingly the respondents have initiated disciplinary proceeding against

the petitioner for his misconduct.

Mr. Mitra submits that immediately after the incident the Inspector

was taken to hospital for treatment wherein on examination the doctor has

opined that Inspector Mr. N.C. Gorian sustained severe internal injuries

apart from cut injury on nose as well as forehead. The doctor further opined

that the internal injuries are due to forceful blows on chest, back, face and

shoulders. Mr. Mitra submits that the said injury report was duly exhibited

during the proceeding as Exhibit P/4.

Mr. Mitra submits that during the enquiry, all the witnesses were

examined in presence of the petitioner and the petitioner has not raised any

objection at the time of recording of the evidence of the witnesses and now

the petitioner has made out a new case.

Mr. Mitra submits that after the order of the Disciplinary Authority,

the petitioner had preferred an appeal but the Appellate Authority even after

going through the merits of the case of the petitioner had rejected the appeal

preferred by the petitioner, and again the petitioner has preferred a review

application but the said review application was also dismissed. All the

authorities have examined the evidence and the materials available on

record and have rejected the claim of the petitioner and thus this Court

sitting in writ jurisdiction cannot evaluate the evidence in the present

proceeding.

Mr. Mitra submits that the petitioner was given proper opportunity

and the petitioner had participated in each and every proceedings including

during the examination of the witnesses and thus the petitioner cannot take

the ground that the petitioner was not given an opportunity during the

enquiry.

Mr. Mitra further submitted that the petitioner has not made any

application with regard to engaging any defence assistant to defend the case

of the petitioner. When the proceeding was initiated, the petitioner was all

along present and had cross-examined the witnesses. Thus, the plea raised

by the petitioner that the petitioner was not allowed to engage defence

assistant cannot be taken into consideration at this stage.

Mr. Mitra relied upon the following judgements:

i. (2006) 7 SCC 212 (State Bank of India and others -vs- Ramesh Dinkar Punde).

ii. (2007) 1 SCC 222 (A.P. SRTC -vs- Raghuda Siva Sankar Prasad). iii. Unreported judgement case of WPA No. 18505 (w) of 2011 (Robert Lakra -vs- Union of India & Ors.) dt. 12.10.2018.

The Disciplinary Authority had initiated disciplinary enquiry against the

petitioner on the allegation that on 21st September, 1999 at about 1900

hours when the Inspector N.C. Gorian was conducting roll call parade, the

petitioner raised his hand to say something, on which the Head

Constable/GD Banarasi Das asked the petitioner to disclose his identity at

which the petitioner has refused to disclose his identity and told something

about the mess. Inspector N.C. Gorian directed the petitioner to disclose his

identity first, the petitioner abused the Inspector by using unparliamentary

words along with another constable Harender Kumar and started beating

the Inspector as a result of which Inspector NC Gorian sustained injuries.

In the memorandum of charge, the Discipline Authority had cited name

of four witnesses and three documents which are as follows:

Name of witnesses:

i. No. 731 549933 Inspector N.C. Gorian of CISF unit, NRL Numaligarh.

ii. No. 744330056 ASI M.S. Wankhade of CISF unit, NRL Numaligarh.

iii. No. 944330546 HC/GD Banarasi Das of CISF unit, NRL Numaligarh.

iv. No. 934470182 HC/Armr B.C. Singha of CISF unit, NRL Numaligarh.

Description of documents :

a. Complaint dated 29th September, 1999 submitted by Inspector NC Gorian.

b. Extract of GD entry serial Number 620 dated 24th September, 1999 and 623 dated 21st September, 1999 of CISF unit, NRL, Numaligarh.

c. Medical Certificate dated 21st September, 1999 issued by Dr. R.K. Sakia, Medical Officer, NRL, Numaligarh.

Admittedly, no Presenting Officer was appointed to conduct the case of

the prosecution but the Enquiry Officer had acted as Enquiry Officer as well

as Presenting Officer. It is found from the record, the Enquiry Officer had

made requisitions to the authority concerned for bringing the witnesses who

were not the listed witnesses. The Enquiry Officer had also called for certain

documents which were not the part of the list of document in the

chargesheet. It is also found from the record initially, the Disciplinary

Authority has appointed one Shri K.V.K. Sriram, Assistant Commandant as

Enquiry Officer but when the petitioner has raised objection for his

appointment as Enquiry Officer, the Disciplinary Authority changed the

Enquiry Officer had appointed another Enquiry Officer in place of Shri K.V.K

Sriram.

The Enquiry Officer had the knowledge that Shri K.V.K Sriram was

appointed as Enquiry Officer earlier but due to the objection of the petitioner

he was removed as Enquiry Officer. But the present Enquiry Officer had

called K.V.K Sriram as witnesses in the present case and had relied upon

the statement of Shri Sriram while submitting enquiry report and thus the

said act of the Enquiry Officer shows the arbitrary action on the part of the

Enquiry Officer.

It is found from the record that only four witnesses were cited in the

witness list but the Enquiry Officer has examined nine witnesses out of nine

witnesses, only the complainant has narrated the incident of assault and

the witnesses who were alleged to be present at the place of occurrence at

the time of incident had not stated anything against the petitioner. P.W.2

namely ASI M.S. Whankade, P.W.3 namely H.C./GD Banarshi Das, P.W.4

HC/GD B.C. Singha are the listed witnesses of the chargesheet who have

stated in their evidence before the Enquiry Officer that they have made their

statement during the preliminary enquiry under pressure of Assistant

Commandant, K.V.K Sriram, Inspector N.C. Gorian and SI. S.K. Gohain.

PW-5 SI. S.K. Gohain is not the ocular witnesses and as per his evidence, he

is the hearsay witness. P.W.6 ASI V. Kantamalai stated that he was not

present at the roll call and he has neither seen nor heard any incident.

P.W.7 HC/GD Gurnam Singhstated that he has not seen that Inspector N.C.

Gorian was beaten by Harinder Kumar and the petitioner in the roll call on

21st September, 1999. PW-8 ASI NN Tyde stated that no incident of assault

was happened in the roll call. PW-9 Assistant Commandant, K.V.K Sriram

though as per his evidence, he is not the witnesses to the occurrence, but he

has stated about the earlier incident which is no way connected with the

present charge.

The petitioner has adduced five witnesses including himself on his

behalf and all the witnesses of the petitioner have stated that no such

incident has occurred and the petitioner has not assaulted Inspector NC

Gorian.

The Enquiry Officer while submitting enquiry report has relied upon

the medical certificate issued by Dr. R.K. Sakiya dated 21st September, 1999

but during enquiry, the doctor was not examined. The Enquiry Officer has

also not considered the evidence of the petitioner's witnesses.

The Disciplinary Authority and the Appellate Authority without

considering the materials on record and the plea raised by the petitioner

have reiterated the enquiry report and have passed the impugned order by

imposing major penalty of dismissal from service.

In the case of Krishna Choudhury (supra), the Hon'ble Division

Bench of this Court held that a departmental enquiry cannot be conducted

in the absence of the Presenting Officer. It is difficult for the Enquiry Officer

to conduct the enquiry proceeding in an unbiased manner in the absence of

the Presenting Officer as the Enquiry Officer sometimes had to perform the

duty which are required to be discharged normally by the Presenting Officer.

In the present case also, no Presenting Officer was appointed and the

Enquiry Officer has discharged the duty of Presenting Officer and had called

the witnesses who were not listed in the list of witnesses and had also

examined the person who was earlier appointed as enquiry officer.

In the case of Roop Singh Negi (supra), the Supreme Court held that

indisputably, a departmental proceeding is a quasi-judicial proceeding. The

Enquiry Officer performs a quasi-judicial function. The charges levelled

against the delinquent officer must be found to have been proved. The

Enquiry Officer has a duty to arrive at a finding upon taking into

consideration the materials brought on record by the parties. The purported

evidence collected during investigation by the Investigating Officer against

all the accused persons by itself would not be treated to be evidence in the

disciplinary proceeding. No witness were examined to prove the said

document. The management witnesses merely tendered the documents and

did not prove the contents thereof. Reliance, inter alia, was placed by the

Enquiry Officer on FIR which could not have been treated as evidence. In

the present case also the Enquiry Officer had relied upon the medical

certificates, x-ray plates and GD entries but none of the documents were

proved through the maker of the documents.

In the case of Kusum Ingots and Alloys Ltd. (supra), the Supreme

Court held that when an order, however, is passed by Court or Tribunal or

an executive authority whether under provisions of a statute or otherwise, a

part of cause of action arises at that place. Even in a given case, when the

original authority is constituted at one place and the appellate authority is

constituted at another, a writ petition would be maintainable at both places.

In other words, as the appropriate authority constitutes a part of cause of

action, a writ petition would be maintainable in the High Court within whose

jurisdiction, it is situated having regard to the fact that the order of the

Appellate Authority is also required to be set aside and as the order of the

original authority merges with that of the Appellate Authority. In the present

case, also the counsel for the respondent has raised a point of jurisdiction of

this Court as the incident had occurred at Guwahati and the Disciplinary

Authority had passed order of punishment at Guwahati. Admittedly, the

office of the Appellate Authority is situated at Calcutta and the Appellate

Authority has passed the order at Calcutta and thus this Court has the

jurisdiction to entertain the instant writ application

The judgements relied by the respondents is distinguishable from the

facts and circumstances of the instant case. In all the judgements relied by

the respondent, the delinquent has accepted the guilt one way or the other

but in the instant case since inception, the petitioner is denying the charges

levelled against the petitioner. During the evidence of the petitioner, the

petitioner has categorically stated that the petitioner was directed by

Inspector NC Gorian to work at his residence but while considering the

evidence, the Enquiry Officer, Disciplinary Authority, Appellate Authority

and the revisionist authorities have not given any finding to the statement

made by the petitioner and his witnesses.

In the case of Union of India v. H.C. Goel : (1964) 4 SCR 718 relating

to departmental proceedings, the Hon'ble Supreme Court observed that

where a public servant is punished for misconduct after a departmental

enquiry is conducted, a clear case where interference Under Article 226 of

the Constitution is warranted is when there is no evidence to establish the

official's guilt.

The two infirmities are separate and distinct though, conceivably, in some cases both may be present. There may be cases of no evidence even where the Government is acting bona fide; the said infirmity may also exist where the Government is acting mala fide and in that case, the conclusion of the Government not supported by any evidence may be the result of mala fides but that does not mean that if it is proved that there is no evidence to support the conclusion of the Government, a writ of certiorari will not issue without further proof of mala fides. That is why we are not prepared to accept the learned Attorney General's argument that since no mala fides are alleged against the Appellant in the present case, no writ of certiorari can be issued in favour of the Respondent.

That takes us to the merits of the Respondent's contention that the conclusion of the Appellant that the third charge framed against the Respondent had been proved, is based on no evidence. The learned Attorney General has stressed before us that in dealing with this question, we ought to bear in mind the fact that the Appellant is acting with the determination to root out corruption, and so, if it is shown that the view taken by the Appellant is a reasonably possible view this Court should not sit in appeal over that decision and seek to decide whether this Court would have taken the same view or not. This contention is no doubt absolutely sound. The only test which we can legitimately apply in dealing with this part of the Respondent's case is, is there any evidence on which a finding can be made against the Respondent that Charge 3 was proved against him? In exercising its jurisdiction Under Article 226 on such a plea, the High Court cannot consider the question about the sufficiency or adequacy of evidence in support of a particular conclusion. That is a matter which is within the competence of the authority which deals with the question; but the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the Respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on

that evidence legally the impugned conclusion follows or not. Applying this test, we are inclined to hold that the Respondent's grievance is well founded, because, in our opinion, the finding which is implicit in the Appellant's order dismissing the Respondent that Charge 3 is proved against him is based on no evidence.

Apart from cases of "no evidence", the Hon'ble Supreme Court has also

indicated that judicial review can be resorted to. However, the scope of

judicial review in such cases is limited. In B.C. Chaturvedi v. Union of India:

(1995) 6 SCC 749 a threejudge bench of the Hon'ble Supreme Court ruled

that judicial review is not an appeal from a decision but a review of the

manner in which the decision is made. It is meant to ensure that the

individual receives fair treatment and not to ensure that the conclusion

which the authority reaches is necessarily correct in the eyes of the court.

The court/tribunal in its power of judicial review does not act as an appellate

authority; it does not re-appreciate the evidence. The court held that:

Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an enquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the enquiry was held by a competent officer or whether Rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold enquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical Rules of the Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding.

When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the Rules of natural justice or in violation of statutory Rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary enquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [Union of India v. H.C. Goel : (1964) 4 SCR 718], this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.

Other decisions have ruled that being a proceeding before a domestic

tribunal, strict Rules of evidence, or adherence to the provisions of the

Evidence Act, 1872 are inessential. However, the procedure has to be fair

and reasonable, and the charged employee has to be given reasonable

opportunity to defend himself Bank of India v. Degala Suryanarayana: (1999)

5 SCC 762 a decision followed later in Punjab & Sind Bank v. Daya Singh:

(2010) 11 SCC 233). In Moni Shankar v. Union of India : (2008) 3 SCC 484

the Hon'ble Supreme Court outlined what judicial review entails in respect of

orders made by disciplinary authorities:

The departmental proceeding is a quasi-judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The courts exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the Department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely, preponderance of probability. If on such evidence, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. This Court struck a similar note, in State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya : (2011) 4 SCC 584, where it was observed that: If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental

enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record.

In view of the above circumstances, this Court finds that the enquiry

was not conducted in a proper manner and the Disciplinary Authority as

well as the Appellate Authority have considered the enquiry report which is

perverse and thus the order passed by the Disciplinary Authority dated 26th

June, 2000, Appellate Authority dated 20th December, 2000 and the order

passed in revision dated 24th April, 2001 are set aside and quashed and the

petitioner is entitled to be reinstated in service forthwith.

WPA No. 12140 of 2001 is thus allowed. CAN 1 of 2005 (Old CAN

No. 851 of 2005) is thus disposed of.

Parties shall be entitled to act on the basis of a server copy of the

Judgment placed on the official website of the Court.

Urgent Xerox certified photocopies of this Judgment, if applied for, be

given to the parties upon compliance of the requisite formalities.

(Krishna Rao, J.)