Prahlad Singh vs Uoi & Ors.
2011 Latest Caselaw 1913 Del

*              IN THE HIGH COURT OF DELHI AT NEW DELHI

+                           WP(C) No.761/2005

%                      Date of Decision: 01.04.2011

Prahlad Singh                                            .... Petitioner

                    Through Mr. A.K.Behera, Advocate

                                Versus

UOI & Ors.                                            .... Respondents

                    Through Ms. Gayatri Verma, Advocate for UOI

                               Ms. Deepa Rai, Advocate for
                               respondent No.2


CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MS. JUSTICE VEENA BIRBAL

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


ANIL KUMAR, J.

*

1. The petitioner has challenged the order dated 22nd April, 2004,

passed by the Central Administrative Tribunal, Principal Bench, New

Delhi in OA 2233/2003 titled as Prahlad Singh vs. UOI & Ors.

dismissing the original application filed by the petitioner against the

order dated 23rd April, 2002 passed against him imposing the

penalty of compulsory retirement with reduction of pensionary

benefits to 1/3rd of the family pension as well as modified appellate

order dated 16th November, 2003 whereby along with compulsory

retirement the amount of gratuity had been reduced to 1/3rd of the

normal amount to the petitioner.

2. Brief relevant facts are that the petitioner was working as UDC

in NCERT and was deputed to participate in the RIE/NIE Annual

Sports Meet as a member of 18 members‟ Sports Team (including

Team Manager Sh. Suman Kujur and Assistant Team Manager Sh.

Benoy Banerjee) from NCERT Headquarter.

3. While en route to RIE, Ajmer by Ahmedabad Mail on 17th

March, 2001, it was alleged that the petitioner consumed alcohol in

the train with Sh. Mahender Singh Dagar, Bearer from 10:30 PM to

1:30 PM and thereafter, abused the family members of Sh. Rakesh

Tiwari and other passengers who had been travelling in the same

compartment. He also threatened that he along with others would

kill Rakesh Tiwari‟s family members. The petitioner also allegedly

abused the women passengers in filthy and dirty language and even

tried to outrage their modesty. On account of his misbehavior and

using dirty and abusive language and trying to outrage the modesty

of women passengers, petitioner as well as Sh. Mohinder Singh

Dagar were arrested and detained by GRPF Police. They were

produced before the Court where they pleaded guilty.

4. The respondents contended that on account of the acts of the

petitioner, it brought bad name and lowered the prestige of NCERT

and he behaved in a manner unbecoming of govt. servant.

5. The petitioner was, therefore, charged under Rule 14 of

CCS(CCA) Rules and common proceedings against him and against

Sh. Mohinder Singh Dagar were ordered under Rule 14 of CCS(CCA)

Rules, 1965 by order dated 4th November, 2001. Prior to issuance of

charge sheet, the petitioner had been placed under suspension w.e.f.

21st March, 2001. The specific charge against the petitioner was that

as a part of sports team going to Ajmer he got totally drunk in the

train and in the drunken state he used loud and abusive language

and misbehaved with fellow passengers. The complainant during the

inquiry had amplified the indecent remarks the petitioner had made

against his wife, mother in law in these words:-

"that he would fuck both of them in standing position".

He also raised the slogan in Hindi

"Jab Tak Suraj Chand Rahega Jat Bable Ki Gand Rahega".

According to the respondent the abusive and dirty language to

the women passengers in the compartment amounted to outraging

their modesty. The petitioner was arrested by the GRPF Police and he

had pleaded guilty before the Magistrate.

6. During the inquiry, the petitioner though denied the charge,

however, did not file any regular defence statement enumerating his

side of story. The petitioner also did not answer the questions put to

him under Rule 14(18) of CCS (CCA) Rules by the Inquiry Officer.

He only stated that his case has already been decided by the Court

and there could not be any additional action against him for the

alleged misconduct.

7. The department examined three witnesses Sh. Benoy Banerjee,

Editor, Publication Division, NCERT, Sh. Suman Kujur, Store

Keeper, Publication Department and Sh. Rakesh Tiwari, Sr.

Additional Public Prosecutor, Govt. of Delhi.

8. Sh. Benoy Banerjee and Sh. Suman Kujur resiled from their

statements made by them in the preliminary inquiry regarding the

misconduct with which the petitioner was charged. The Inquiry

Officer declared both of them as unreliable and based the case on the

testimony of Sh. Rakesh Tiwari, who was a public prosecutor, who

had categorically deposed that he was with his wife Monika and his

mother-in-law Santosh and two young sons, Ambar and Alankar and

his brother-in-law Ravi Sharma in the train, where the petitioner

after getting intoxicated, abused his wife and mother in law and also

abused „Jat Community‟ as Sh. Mohinder Singh Dagar, co-

delinquent was a „Jat‟.

9. The petitioner danced and sang obscene songs in Haryanvi

language. On account of the behavior of the petitioner the family

members of Sh. Rakesh Tiwari and other co-passengers were

extremely terrified and tormented. Sh. Tiwari even decided to

discontinue his onward journey to Sh. Ajmer Sharif and he cancelled

his trip and purchased the return tickets of the Shatabdi Train on

the same date on 18th March, 2001.

10. The inquiry officer considered the testimonies of all the

witnesses in detail and considered the documents. The Inquiry

Officer also noted that the petitioner had cross-examined the

witnesses and could not extract anything from the witnesses which

would reflect that their statements were incorrect. Relying on the

cogent testimony of Sh. Rakesh Tiwari and other factors, the Inquiry

Officer held that the charge against the petitioner was fully proved

and it had also been established that the petitioner had started

drinking session in the train and had sang obscene songs and

danced leading to outrageous comments against the wife and

mother-in-law of Sh. Rakesh Tiwari and outraged their modesty.

11. The Disciplinary Authority after giving a copy of the Inquiry

report, and allowing an opportunity to the petitioner to make a

representation after considering the written representation of the

petitioner and also taking into consideration the long period of

service of the petitioner in the Council and that the petitioner was

due to retire, by order dated 23rd April, 2002 imposed the

punishment of compulsory retirement and reduction of his pension

by 1/3rd of the Normal Pensionary Benefits.

12. Aggrieved by the order of the Disciplinary Authority dated 23rd

April, 2002, the petitioner filed a statutory appeal, which was

considered and disposed of by the Appellate Authority by order dated

6th November, 2002 modifying the order of punishment to reduction

of his gratuity by 1/3rd of the normal amount and sustaining the

order of compulsory retirement.

13. The petitioner challenged the order of the Disciplinary

Authority and the Appellate Authority by filing an original application

being OA 2233/2003 titled Sh. Prahlad Singh Vs. UOI & Ors., which

was dismissed by the Tribunal by order dated 22nd April, 2004.

14. Before the Tribunal, on behalf of the petitioner, two grounds

were raised i.e., non examination of the petitioner and failure of the

Inquiry Officer to put evidence against him in the form of question in

consonance with Rule 14(18) of the CCS (CCA) Rules and that under

Rule 40 of the CCS (Pension) Rules 1972 on compulsory retirement,

the competent authority could withhold the pension only on the

orders of the President in consultation with UPSC. As the order had

been passed by the Secretary as Disciplinary Authority and Joint

Director as Appellate Authority, it was contended that the orders are

without jurisdiction.

15. The Tribunal repelled the contentions raised on behalf of the

petitioner holding that evidence and circumstances appearing

against the petitioner were put to him in the form of questions but

the petitioner had refused to answer the questions put to him.

Regarding Rule 40, it was held that Sub Rule 2 of Rule 40 applies

only when the charged officer is a Group A Officer and the President

had to pass an order on its original side and in cases where the

President acts as an Appellate Authority under Rule 27 of the

CCS(CCA) Rules, 1972. It was held that when a penalty of

compulsory retirement is imposed on a Government servant, then

the competent authority passing the order of penalty is also

competent to impose pension or gratuity cut and in the

circumstance, the consultation with UPSC was not necessary. In

para 11 of the judgment, the Tribunal held as under:-

"11........As regards Rule 40 is concerned, sub Rule (1) of Rule 40 and sub Rule (2) are two distinct provisions apply to different situations. Rule 40 applies when a government servant by way of penalty is compulsorily retired in that event the competent authority who has passed the order of penalty is competent to impose pension or gratuity cut, whereas the order passed by the President requires consultation with UPSC only while acting as an appointing authority of Group „A‟ officer or in case of an appeal the appellate authority or reviewing authority. This is in consonance with rules 17 and 32 of the CCS (CCA) Rules, 1965 where an order passed by the President as disciplinary authority is preceded by consultation with UPSC. Admittedly, applicant is not a Group „A‟ officer and the President is not his reviewing or appellate authority. In such an event pension or gratuity cut is to be imposed by the competent authority, which is the authority who passed the order of penalty. In the instant case undisputedly Secretary is the competent authority who passed the order of penalty is equally competent to impose pension/gratuity cut."

16. This court has heard the learned counsel for the parties. Mr.

Behera, the learned counsel for the petitioner, has contended that

the petitioner had 38 years of unblemished service. He further

contended that out of three witnesses examined by the department

two had turned hostile and had resiled from their statements and on

the basis of the deposition of one of the witnesses, the charge against

the petitioner is not established. The learned counsel also contended

that the consultation with the UPSC was mandatory and in absence

of consultation with the UPSC, the entire disciplinary proceedings

against the petitioner were vitiated. This was also contended that

even if consultation with UPSC was procedural, non-compliance of

the procedure will be improper and the petitioner shall be entitled to

the consequential relief thereof.

17. According to the petitioner‟s counsel, the acts complained

against the petitioner cannot be construed as grave misconduct

considering his background, his age and rural background.

18. The pleas raised by the learned counsel for the petitioner are

unsustainable and cannot be accepted in the facts and

circumstances and on the basis of some of the facts which have been

enumerated hereinafter. In any case in exercise of its jurisdiction

under Article 226 of the Constitution of India, this Court does not

have to re-appreciate the evidence and reach a finding different from

the findings of the Inquiry Officer and Disciplinary Authority. Even if

on considering all the evidence, this court has a different inference,

the view and the inferences drawn by the Inquiry Officer and the

Disciplinary Authority are not to be substituted by another view,

even if possible, in the facts and circumstances. In (2006) 5 SCC 88,

M.V.Bijlani Vs Union of India & ors. it was held by the Supreme

Court that that the judicial review is of the decision making process

and not with re-appreciation of evidence. It was held by the Supreme

Court at page 95 as under:

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 analyzing 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 any case, considering the allegations made against the

petitioner, this Court has also perused the Inquiry report and the

observations made by the Inquiry Officer regarding the deposition of

the witness, Sh. Rakesh Tiwari about the conduct of the petitioner.

The findings of the Inquiry Officer can be interfered by this Court in

exercise of its jurisdiction provided the findings are illegal or perverse

in any manner and based on no evidence. 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 analyzing the evidence and documents must arrive at a

conclusion that there had been a preponderance of probabilities 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.

19. Perusal of the extracts of the deposition of Sh. Rakesh Tiwari,

this Court is of the view that there is no illegality or perversity in any

manner in the findings of the inquiry officer. The inquiry officer has

not taken into consideration irrelevant facts nor has he made his

own assumptions nor has shifted the burden of proof. Nothing has

been pointed out by the counsel for the petitioner that relevant

testimonies have been rejected.

20. In any case in exercise of its jurisdiction, it has always been in

the discretion of the High Court to interfere or not depending upon

the facts and circumstances of the case. In Shangrila Food Products

Ltd. & Anr. vs. Life Insurance Corporation of India & Anr. (1996) 5

SCC 54, the Supreme Court had held that "the High Court in

exercise of its jurisdiction under Article 226 of the Constitution of

India can take cognizance of the entire facts and circumstances of

the case and pass appropriate orders to give the parties complete

and substantial justice. The jurisdiction of the High Court, being

extra ordinary, is normally exercisable keeping in mind the principle

of equity. One of the ends of the equity is to promote honesty and fair

play."

21. Even if two of the witnesses had resiled from the their earlier

statements made in the preliminary inquiry, so long as there was

cogent and consistent testimony of PW-3 Sh. Rakesh Kumar, the

findings of the Inquiry Officer that the charge had been established

cannot be interfered with. In any case, this Court also concurs with

the findings of the inquiry officer that the charge against the

petitioner is made out.

22. It will be apparent to note that this ground was not raised on

behalf of the petitioner before the Tribunal as the grounds raised

were that the evidence and circumstances against the petitioner were

not put to him in compliance of Rule 14(18) of CCS(CCA) Rules and

that consent of the President was required under Rule 40 of

CCS(Pension) Rules, 1972 while imposing the punishment of

reduction of gratuity.

23. The plea of learned counsel that the UPSC was not consulted

was given up when confronted with the decision of the Supreme

Court in (2007) 4 SCC 785 UOI & Anr vs. T.V. Patel holding that

provision of Article 320(3)(c) of the Constitution of India are not

mandatory and do not confer any rights on the public servant so that

the absence of consultation or any irregularity in consultation

process or in furnishing a copy of advise tendered by UPSC afford

any cause of action in Court of law to a delinquent Government

servant.

24. Consequently, the plea on behalf of learned counsel for the

petitioner that lack of consultation with UPSC is a procedural

impropriatary, cannot be accepted nor the inquiry proceeding and

punishment imposed on the petitioner can be vitiated on this ground

in any manner.

25. The plea of the learned counsel for the petitioner that the

petitioner had a long unblemished service also had been taken into

consideration while awarding the punishment as the Disciplinary

Authority has categorically held that having regard to the long period

of service of petitioner in the Council and the fact that he is due to

retire shortly, the punishment of only compulsory retirement was

imposed upon him along with reduction of his pensionary benefit by

1/3rd of normal pensionary benefit which was modified to reduction

of a part of the gratuity.

26. The next plea by the learned counsel for the petitioner that the

misconduct on the part of the petitioner, cannot be construed to be

grave is rejected without any further consideration. The plea is

without any basis and cannot be substantiated in the facts and

circumstances. In any case, the petitioner cannot be allowed to raise

the grounds which were not raised before the Tribunal. In any case,

considering the filthy and abusive language used by the petitioner

against the women co passengers in a drunken stage, which led to

cancellation of tickets by Sh. Rakesh Tiwari and returning on the

same date and the conduct of the petitioner tantamount to outraging

the modesty of women, cannot be construed to be not very grave in

the facts and circumstances to show any leniency to him.

27. In the totality of facts and circumstances, there is no ground to

interfere with the order of the Disciplinary Authority and Appellate

Authority imposing the punishment upon the petitioner nor this

Court finds any such illegality or unsustainability or perversity in the

order of the Tribunal, which will entail any interference by this Court

in exercise of its jurisdiction under Article 226 of Constitution of

India.

28. The writ petition is without any merit, and it is, therefore,

dismissed. Parties are left to bear their own costs.

ANIL KUMAR, J.

VEENA BIRBAL, J.

APRIL 01, 2011.

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