Director General (Prison) vs Sh.Hari Shankar
2010 Latest Caselaw 2178 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                              WP(C) No.2746/2010
%

                        Date of Decision: 26.04.2010


Director General (Prison)                                  .... Petitioner
                     Through Mr.V.K.Tandon, Advocate.


                                   Versus


Sh.Hari Shankar                                          .... Respondent
                     Through     Nemo.


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG

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               NO
     in the Digest?




ANIL KUMAR, J.

*

The petitioner, Director General (Prison) has impugned the order

dated 9th September, 2009 passed by the Central Administrative

Tribunal, Principal Bench, New Delhi in O.A. No. 523 of 2009, titled as

'Sh. Hari Shankar v. Government of NCT of Delhi and another',

allowing the original application of the respondent and setting aside the

penalty of reduction by three stages with cumulative effect for a period

of three years imposed upon the respondent pursuant to an enquiry

proceedings and setting aside the order dated 20th August, 2007 of the

disciplinary authority and Appellate Order dated 20th February, 2008.

The respondent while working as a Warder was issued an

imputation of misconduct alleging that on 17th February, 2004, he was

posted in UT Office was found absent during the relevant time as he

arrived in the Jail at 07.06 hours instead of 07.00 hours.

The petitioner contended that the respondent while performing

duty in Central Jail No.1 on 17th February, 2004 was supposed to reach

at 7.00 hours. His responsibility was to hand over the UT Prisoners for

local production and outstation production but due to his late coming,

his work was handled by other warders and due to his absence and

negligence, one under trial prisoner Sher Singh Rana was handed over

to some unauthorized person posing as Delhi Armed Police personnel.

Though the charge was that on account of his late coming, one

under trial prisoner Sher Singh Rana was handed over to some other

person posing as Delhi Armed Police personnel, however, in the

enquiry, the respondent had been held guilty for the said charges of

coming late, but also allowing the UTP Parvesh to have access over the

sensitive documents and not obeying the superior officer and also not

reporting regularly to the concerned officials.

Though the enquiry report exceeded the scope of charges framed

against the respondent, the disciplinary authority imposed the

punishment which was modified in appeal to reduction by three stages

with cumulative effect for a period of three years which was challenged

by the respondent by filing an application under Section 19 of

Administrative Tribunal Act, 1985.

Before the Tribunal, the plea of the respondent was that he has

been held guilty on the charges which were not alleged against him. In

the circumstances, it was contended that he has not been offered an

opportunity to defend himself and consequently, the enquiry and the

action taken by the disciplinary authority and the appellate authority is

vitiated. The respondent had also alleged that he has been punished on

mere suspicion, surmises and without any misconduct.

The respondent also asserted that the prisoner was handed over

to an imposter before 7.00 hours and as the duty hours of the

respondent were to commence from 7.00 hours, on account of the

respondent coming to the office 6 minutes late, it cannot be held that

on account of negligence on the part of the respondent, the prisoner

was handed over to an imposter. Regarding authorization of UTP

Parvesh to hand over the UT prisoner, the respondent contended that

the order dated 10th December, 2003 for UTP Parvesh to be sent to

Deodhi for working in the UT Office for cleaning etc. was not authorized

by him, and in any case he was not authorized to do any official act.

The pleas and contentions of the respondent were contested,

inter-alia, on the ground that in judicial review re-appreciation of

evidence is not sustainable and punishment imposed cannot be

interfered. It was asserted that the alleged plea of innocence by the

respondent is an afterthought.

The Tribunal noticed that a number of charges established by the

enquiry officer were not framed against the respondent as they do not

find mention in the charge sheet and consequently on extraneous

charges the respondent had been held guilty without following due

process of law and without affording a reasonable opportunity to him to

rebut the charges and put up his defense. The reliance was also placed

on 'M.B.Bijlani v. Union of India and others', 2006 (3) SLR SC 105. The

Tribunal also held that the respondent coming late by six minutes

cannot be construed to be such a misconduct which would entailed a

major punishment unless it was deliberate and a part of the conspiracy

and in the circumstances, the enquiry proceeding against the

respondent was unwarranted and unreasonable. The Tribunal also

noted that the respondent came to Jail at 7.06 hours merely six

minutes late, however, even before his coming, the prisoner was handed

over to the imposter who had left the Jail before the respondent had

reached the post of his duty and consequently, no act of commission or

omission could be imputed to the respondent. Regarding Parvesh the

Tribunal also inferred that he was not authorized by the respondent to

deal with the documents and prisoners and in the circumstances, the

findings of the petitioner are without any evidence and ex facie perverse

and not sustainable and consequently set aside the penalty imposed

upon the respondent.

Learned counsel for the petitioner has not been able to refute that

the findings by the disciplinary authority are much beyond the scope of

articles of charges framed against the respondent. This is not disputed,

and it cannot be disputed that no charges that the respondent had

colluded with other officials in handing over of the under trial prisoner

to an imposter and he deliberately came late was framed nor it has been

established. This also has been admitted by the learned counsel for the

petitioner that no charges were framed that the respondent had

authorized Parvesh to deal with the documents and to hand over the

prisoner.

In the circumstances, the findings which are beyond the charges

framed against the respondent, cannot be the basis for imposing

punishment on the respondent as it would be in denial of principle of

natural justice as the respondent had been deprived of his right to put

up his defense. This is also borne out from the evidence laid before the

enquiry officer and from the report of the enquiry officer that the

respondent came merely late by six minutes and even before the

respondent could reached his post, the under trial had been handed

over to an imposter who had already left the Jail premises. The charge

was not that the respondent deliberately came late with a view to

felicitate handling over of the under trial prisoner to an imposter and

the respondent had colluded with the Parvesh and the under trial

prisoner.

Though the jurisdiction of the Tribunal in judicial review is

limited, disciplinary proceedings, however, being quasi-criminal in

nature, there should be some cogent and reliable 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, but it cannot be lost sight of the fact that the enquiry officer

performs a quasi-judicial function, who upon analysing the evidence

and 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 make his own assumptions. 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, it is apparent that the penalty imposed

upon the respondent is based on no evidence and is apparently

perverse and not sustainable in law in the circumstances and

consequently, the order of the Tribunal setting aside the penalty

imposed upon the respondent, in the circumstances, cannot be faulted.

The order of the Tribunal does not have any such illegality or

irregularity or such perversity, which will necessitate interference by

this Court in exercise of its extraordinary jurisdiction under Article 226

of the Constitution of India.

The writ petition, in the facts and circumstances, is without any

merit, and it is, therefore, dismissed.

ANIL KUMAR, J.

APRIL 26, 2010                                 MOOL CHAND GARG,J.
'VK'