Union Of India & Others vs Sh. Mukesh Kumar Sharma
2009 Latest Caselaw 5036 Del

*                 IN THE HIGH COURT OF DELHI AT NEW DELHI

+                               W.P. (C.) No.13652/2009

%                             Date of Decision: 07.12.2009

Union of India & Others                              .... Petitioners
                     Through Mr.R.V. Sinha, Advocate

                                      Versus

Sh. Mukesh Kumar Sharma                         .... Respondent
                  Through Mr.Sachin Chauhan, Advocate

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE VIPIN SANGHI

1.     Whether reporters of Local papers may be              YES
       allowed to see the judgment?
2.     To be referred to the reporter or not?                NO
3.     Whether the judgment should be reported in            NO
       the Digest?


ANIL KUMAR, J.

*

The petitioner in the present petition have impugned the order

dated 28th May, 2009 in OA NO.636 of 2008 passed by the Central

Administrative Tribunal, Principal Bench, New Delhi titled Shri Mukesh

Kumar Sharma v. Union of India and Others quashing the report of the

Inquiry Officer and setting aside the punishment of withholding

respondent‟s increment for two years with cumulative effect by order

dated 25th October, 2006 of the Disciplinary Authority and order dated

16/17th January, 2008 of the Appellate Authority dismissing the appeal

of the respondent.

Charges were leveled against the respondent that he exhibited

gross negligence in discharge of his duties with the allegation that he

had been harassing the residents of Christian colony and had been

demanding money from them.

After enquiry, the disciplinary authority had awarded the

punishment of withholding his increments for two years with

cumulative effect by order dated 25th October, 2006 and the appeal filed

by the respondent was dismissed by order dated 16th/17th January,

2008.

The Tribunal while considering the petition of the respondent

noted that the charges against the respondent had two components,

i.e., that the respondent had been harassing some of the residents of

Christian colony and demanding money from them, and he had made

calls to police on PCR vans on 20th May, 2004; 26th May, 2004; 28th

May, 2004 and 25th June, 2004 regarding unauthorized construction

and encroachment in Christian colony but he did not file any written

report on the matter in L&DO for taking further action.

The Tribunal after considering the pleas, contentions and the

inquiry report noted that the findings of the Inquiry Officer are not in

accordance with the prescribed procedure under the CCS (CCA) Rules,

1965. It was also noticed that the complainants who had alleged that

the respondent had been demanding money from them had not been

examined, though they were the material witnesses and in absence of

their testimonies, the charge against the respondent that he had been

harassing some of the residents and demanding the money from them,

could not have been established. Regarding the calls made to the PCR

vans, it had transpired that no evidence was produced except the report

of the Additional Deputy Commissioner of Police which was not

sufficient to establish the allegations against the respondent, as the DD

entries on 20th May, 2004 and 28th May, 2004 did not indicate that the

calls were made by the respondent. In these circumstances, the Central

Administrative Tribunal has set aside the report of the Inquiry Officer

and punishment awarded to him on the ground that there was no

evidence against the respondent proving the charges made against him.

It has been held that the Inquiry Officer had taken contradictory stands

without any evidence and the observations of the Inquiry Officers were

based on his surmises and conjectures. The Inquiry officer had

surmised that police station may be keeping a separate record regarding

the calls made to the PCR van and that such record may have the

respondents name, even though the daily diaries for the concerned

dates (when the respondent is alleged to had made the calls) did not

reflect the name of the respondent. None of the witnesses have deposed

that a separate record regarding the complaints received by the PCR

vans is maintained. There was no evidence that the respondent had

harassed any resident of Christian colony and the alleged inferences by

the Inquiry Officer were only based on his surmises. In the

circumstances, the Tribunal has set aside the inquiry report and the

punishment awarded by the Disciplinary Authority and has also set

aside the order of Appellate Authority dismissing the appeal of the

respondent.

The High Court in exercise of its power under Article 226 of the

Constitution of India and of Judicial review deals with decision making

process and not with re-appreciation of evidence. In any case, the

findings of the Tribunal that the inferences of the enquiry officer were

based on his surmises and conjectures and not on cogent evidence has

not been successfully assailed by the petitioners. The counsel for the

petitioner has not been able to show such cogent evidence against the

respondent, which will establish the charges made against the

respondent. The decision of the Tribunal that the findings of the

enquiry officer were perverse and without any evidence, cannot be

faulted in the facts and circumstances. Evidence recorded and

inferences drawn were not commensurate with charges and therefore,

the charges had not been established. Supreme Court in M.V. Bijlani v.

Union of India, (2006) 5 SCC 88, at page 95 had held:

"25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial

function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with."

In the circumstances, the order of the Tribunal does not suffer

from any error so as to require interference by this Court in exercise of

its jurisdiction under Article 226 of the Constitution of India. The writ

petition is therefore, without any merit. The writ petition is therefore,

dismissed.

ANIL KUMAR, J.

December 07, 2009                                          VIPIN SANGHI, J.
„Dev‟