Raje Singh vs Union Of India & Ors.
2012 Latest Caselaw 2250 Del

       *          IN THE HIGH COURT OF DELHI AT NEW DELHI

%                          Date of Decision: 9.04.2012

+                          W.P.(C) No.149/2000

Raje Singh                                       ...       Petitioner

                                  Versus

Union of India & Ors.                             ...      Respondents

Advocates who appeared in this case:

For the Petitioner : Mr.H.S.Dahiya
For Respondents : Mr.S.K.Sharma & Dr.Ashwani Bhardwaj

CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE SUDERSHAN KUMAR MISRA

ANIL KUMAR, J.

1. The petitioner has sought the quashing of punishment order

dated 30th April, 1997,the order dated 26th June, 1998 dismissing the

revision petition filed by the petitioner and the order dated 7th August,

1999 passed by the appellate authority. The petitioner has further

sought his reinstatement with full service benefits.

2. Brief facts to comprehend the controversies are that the petitioner

was detailed for election duty in Uttar Pradesh. While camping at CISF

Unit, IISCO Burnpur certain officers had mistaken the alleged toy pistol

of the petitioner to be a real pistol, which led to an incident due to

which reason the petitioner was ordered to be apprehended, as the

petitioner had become violent under the influence of liquor, he was

therefore, taken to the police station in the night of 13th September,

1996.

3. The petitioner was thereafter released on bail on the next day,

and after trial in the Court of SDJM Asansol on 16th September, 1996

the petitioner was convicted and fined Rs.50/- under Section 290 of the

Indian Penal Code.

4. The petitioner was also placed under suspension with effect from

15th September, 1996 and on receipt of the preliminary enquiry report

he was chargesheeted under Rule 34 by memo dated 25th October,

1996. The charges framed against the petitioner are as under:-

Charge No.I No. 894360205 Constable Raje Singh of CISF Unit, ASP Durgapur indulged in gross misconduct, an act of indiscipline, insubordination and unbecoming a member of an Armed Force in that while comping at CI SF Unit, II SCO Burnpur for onward journey to Uttar pradesh on election duty, has after consumption of liquor misbehaved with Insp/Exe B.Guruswamy at 'A'- Coy line of CISF Unit, IISCO Eiurnpur and Shri J.S.Negi, Asstt. Commandant/JA0 of CISF Unit, IISCO Burnpur on 13.09.96 at about 1915 hrs using unparliamentary/abusive and threatening language therby creating an ugly scene in the Unit premises for which he was handed over to Police', convicted under Section-290 of IPC , and later released by the SDJM Assansol Court with fine of Rs.50/-. Hence the charge.

Charge No.II During the service in CISF, No.894360208 Constable Raje Singh has been awarded 04 Major penalties and 03 minor penalties under CISF Rules, 1969 for' gross misconduct, indisciplined activities and negligence of duty but he has not corrected himself inspite of enough opportunities given to him, which shows that Constable Raje Singh is unfit to become/not l i k e l y t o be a desireable member o f A r m e d F o r c e b e i n g a habitual offender and incorrigible. Hence the charge."

5. The enquiry proceedings were held at CISF Unit, IISCO Burnpur

and later at Durgapur in phases. During the enquiry proceedings 8

witnesses were examined on behalf of the respondents and the

petitioner also gave his statement. Though the defence assistant was

appointed and the petitioner was given an opportunity to cross examine

the witnesses, however, the petitioner did not cross examine most of the

witnesses and rather stated that he had been pressurized and

threatened. The petitioner did not cross examine Sh.J.S.Negi, Assistant

Commandant, CISF Unit, IISCO Burnpur, PW-1; Sh.B.N.Bej, Inspector

PW22; Constable Rudresh Kumar, CISF Unit, IISCO, Burnpur, PW-3;

Insp./Exe.B.Guruswamy, PW-4; ASI/Exe.Ram Kishore of CISF Unit,

IISCO, Burnpur, PW-5 and Sh.S.V.Bhai, Assistant Commandant, PW-6.

6. On 31st December, 1996, the petitioner was given another

opportunity to cross examine the witnesses as the enquiry proceedings

were shifted from Burnpur to Durgapur, to be conducted at CISF Unit,

ASP, Durgapur. He was advised that he need not fear anyone, nor he

should feel pressurized, as on earlier occasions he had been declining to

cross examine the witnesses on the ground that he is being pressurized

and threatened. Despite another opportunity being given to the

petitioner to cross examine the witnesses, he did not cross examine any

of the witnesses.

7. The defence assistant, however, cross examined

Insp./Exe.P.C.Abraham, PW-7 who stated in the cross examination that

from the way the petitioner had been walking and conversing it was

evident to him that he was under the influence of liquor. No other

question was put to the said witness in the cross examination. After

that statement of ASI/Exe.Tulsi Ram, PW-8 was examined, and the

petitioner was offered that the cross examination of the said witness

can be deferred as his defence assistant Constable Satpal Singh had

been posted out from the unit, however, the petitioner stated that the

enquiry may continue even the absence of his defense assistant, as he

himself would cross examine the said witness, and thus the petitioner

cross examined PW-8 Tulsi Ram. The said witness also categorically

stated that the petitioner went on uttering unparliamentary language

and that the Assistant Commandant J.S.Negi had taken the petitioner

to the police station and thereafter, the FIR was registered and the

police had detained the petitioner for investigation.

8. The petitioner in his defence statement deposed that he had not

consumed liquor and relied on the copy of the medical examination

report dated 13th September, 1996. He further deposed that Constable

R.S.Chib was interrogated as to why he had assaulted Constable

Rudresh Kumar with pistol and why the unauthorized weapon was kept

by him, when, in fact, the said pistol was a toy pistol which belonged to

the petitioner, which was taken by Constable R.S.Chib just before the

incident. The petitioner deposed that therefore, he intervened into the

matter and he requested them to return his pistol to which the officers

of IISCO, Burnpur did not agree leading to some of the members of

IISCO, Burnpur using power against the petitioner and confining him

and taking him to the police station. The petitioner further deposed that

he did not misbehave with any of the officials. However, the petitioner

did not produce any other witnesses in support of his pleas and

contentions. The enquiry officer after considering the pleas and

contentions and the evidence of the witnesses produced before him by

his report dated 31st January, 1997 held that the charges against the

petitioner were made out. The enquiry officer observed that the

prosecution version could not be disbelieved since on account of the

time gap from the time of consumption of liquor and the time of

examination by the doctor, the effect of alcohol was over and thus there

was no reason to disbelieve this explanation of the respondents.

9. The petitioner was given the copy of the enquiry report and he

was asked to make his representation. The petitioner submitted a

written representation dated 12th March, 1997 to the enquiry report in

which he categorically admitted in para 2.4 that the petitioner had been

provided with the copy of the preliminary enquiry report dated 16th

September, 1996, however, he had not been supplied with the

statements of the concerned personnels who had deposed during the

preliminary enquiry. The petitioner also represented that despite his

written request dated 25th November, 1996 and 14th December, 1996,

regarding holding of an enquiry at CISF Unit, ASP, Durgapur, he was

forced to go for enquiry at IISCO, Burnpur where he was manhandled

and where free and fair enquiry was not possible in his opinion.

However, the disciplinary authority after considering the enquiry report

and the representation of the petitioner by its order dated 30th April,

1997 imposed the punishment to reduce his pay by two stages from

Rs.900 to Rs.870/- for a period of one year and it was also stipulated

that he would not earn any increment of pay during the period of

reduction and on expiry of the period of reduction it would have the

effect of postponing his future increment of pay and that the period of

suspension from 15th September, 1996 to 13th November, 1996 would

be treated as period not spent on duty for all purposes. It was also

directed that he would not be entitled for any other remuneration

except what has been paid to him as subsistence allowance.

10. Pursuant to the order dated 30th April, 1997, DIG CISF, Calcutta

exercised the suo motu power under Rule 49(1) of CISF Rules, 1969

and gave a show cause notice dated 9th January, 1998 asking the

petitioner as to why the penalty of reduction in pay be not enhanced to

that of removal from service. The petitioner gave a reply to the show

cause notice dated 9th January, 1998, seeking to enhance the

punishment, by his reply dated 2nd April, 1998. The petitioner in the

reply to the show cause notice for enhancement of his punishment from

reduction of pay to that of removal from service categorically stated that

as promised by him before the disciplinary authority, that he would not

be involved in any sort of activities which might tarnish the image of the

force, he had been keeping the promise and working hard even beyond

normal working hours with utmost devotion of duties, which was even

reflected in the four cash rewards he had earned within a period of six

months and thus he urged that he would keep his promise till

retirement. The Deputy Inspector General, however, considered the

charges established against the petitioner and his previous record

awarding him various major and minor punishments on account of his

gross misconduct which are as under:-

Sl.   CHARGES/ALLEGATION    PUNISHMENT   AWARDED
No    LEVELLED  AGAINST  IN WITH FINAL ORDER NOS.
      BRIEF                 & DATES

1. a. Constable Raje Singh was Reduction of pay by one found absent from Unit Lines stage from `885/- to `870/- and surprise roll call on without cumulative effect

26.04.92 at about 2310 hrs. vide Final Order No. V-

15014/ Maj/ Disc/ Adm.II/ b. He allegedly stabbed Shri 92/5224 dated 19.9.92 and Khagen Choudhury a subsequent amendment Civilian at NTPC More, order No.(8050) dated Nabarun, Farakka on 28.12.92.

26.04.92 at about 2200 hrs. under the influence of liquor and created public nuisance.

2. a. Constable Raje Singh Reduction of pay by one without any cause, assaulted stage from `900/- to `850/-

HC/GD T.S.Neog who is for a period of one year senior in rank at about 2225 without cumulative effect hrs. on 20.06.92. vide Final Order No. V-

15014/ Maj/ Disc/ Adm.II/ b. He disobeyed the order of 92/8081 dated 29.12.92 Inspector R.S.Kolaj for appearing in the enquiry in connection with assault on HC/GD T.S.Neog.

      c. He snatched the telephone
      while       HC/GD        B.L.
      Deshmukh         and     Naik
      Anjalaiah were about to
      communicate the alleged
      assault to their senior.
3.    Constable Raje Singh of         Reduction of pay by one
      FSTPP Farakka proceeded         stage from `885/- to `870/-

out of the Unit lines without without cumulative effect any out pass and made fide Final Order No. V-

"Marpit" with the civilian in 15014/Adm.II/Maj/RS/94/ drunken condition near New 3394 dated 13.6.94 Farakka crossing at about 2215 hrs. on 5.6.93 and remained absent throughout night.

4. a. Constable Raje Singh Reduction of pay by three along with Constable Ranbir stages from `885/- to `855/- Singh assaulted on HC/GD for a period of one year Devender Singh at CISF Unit without cumulative effect FBP Farakka at about 2020 fide Final Order No. V-15014 hrs on 20.09.94. (9)/ FBP/ 94/ L&R/477 dated 1.5.95 b. Constable Raje Singh along with Constable Ranbir Singh and Constable Rohtas

Singh once again assaulted on HC/GD Devender Singh at about 2115 hrs. to 2130 hrs. on 20-09-94.

      c. Constable Raje Singh is
      habitual offender who could
      not rectify himself inspite of
      availing       many          a
      opportunities given by the
      Disciplinary Authority of FBP
      Farakka.

5. He was found absent from Fine amounting to Seven duty post at about 1815 hrs. days pay vide Final Order on 2.8.95 No.V-15014/CISF/ASP/AC (P)/RA/95/1239 dated 29.8.95.

6. a. He was absent from the Censure vide Final Order Unit Roll Call held at1800 No.V-15014/CISF/ASP/ hrs. on 1.4.96 without any AC(P)/RS/96/1426 dated permission from competent 27.4.96 authority.

b. He was ordered to appear in the orderly room of AC/Plant on 2.4.96 at about 1600 hrs. but he did not appear in the orderly room.

c. He was once again ordered to appear in the orderly room of AC/Plant on 4.4.96 at about 1100 hrs. but he did not appear in the orderly room.

7.    He while was on temporary        Censure vide Final Order
      duty at CISF Unit FSTPP          No.V-15014/Adm.III/ ASP/
      Farakka on 26.11.95, went        RS/ 96/ 4110 dated
      to the family quarters area of   31.8.96.
      the unit and created ugly
      scene by shouting filthy
      language and confronted
      with CISF personnel there.

11. On considering the antecedents of the petitioner and his reply

against the proposal for enhancement of punishment, the DIG awarded

the punishment of "removal from service" effective from the date of

service of the order by his order dated 26th June, 1998.

12. Aggrieved by the order of removal passed by the Deputy Inspector

General, the petitioner preferred an appeal contending, inter-alia, that

the Revisional authority had illegally and arbitrarily enhanced the

punishment from reduction of pay to that of removal from service and

consequently, he sought the setting aside of the said order. The appeal

filed by the petitioner was, however, dismissed by order dated 7th

August, 1999.

13. Aggrieved by the orders passed by the respondents, the petitioner

has preferred the above noted writ petition, inter-alia, on the grounds

that though he had tried to give an explanation that the pistol was a toy

pistol which was purchased by the petitioner for his children, however,

his explanation was not believed and rather the Assistant Commandant

had ordered to apprehend the petitioner and later on he was handed

over to the police authorities. The petitioner contended that the findings

of the enquiry officer are perverse because the petitioner was handed

over to the police on the premise that he had a real pistol which he was

keeping unauthorisedly. The pistol was examined at the police station

and it was found to be a toy pistol. The petitioner has also challenged

the findings of the enquiry officer that the petitioner had consumed

liquor and misbehaved and had used unparliamentary/abusive

language and had thus created an ugly scene for which he was handed

over to the police. Relying on the report of the medical examination, it

was contended that it had been clearly established that he had not

consumed any liquor and that the enquiry officer failed to consider the

documentary proof relied on by the petitioner. The petitioner also

asserted that after being chargesheeted under Section 290 of IPC,

„punishment for public nuisance in cases not otherwise provided for‟ he

was released after giving punishment of fine of Rs.50/- by the SDJM,

Asansol Court and that the petitioner was made to seek forgiveness to

avoid long trial at a place where the petitioner was neither posted nor

had he been living. According to the petitioner, even in the

departmental enquiry the same charges were leveled against the

petitioner and, therefore, the petitioner is being punished twice for the

same offence which is arbitrary and illegal. The petitioner also

challenged the punishment imposed on him on the ground that it was

severe and disproportionate to the misconduct attributed to him. The

petitioner contended that the Revisional authority ought not to have

enhanced the punishment and that the petitioner could not have been

imposed the punishment of removal in view of the previous punishment

already imposed on him. As for the previous misconducts he contended

that he had already been punished for the same. The petitioner also

made the grievance that his representation dated 7th July, 1999 was not

considered and disposed of.

14. The learned counsel for the petitioner also contended that he

suffered prejudice as he was not given the report of the preliminary

enquiry and the petitioner was not allowed to cross examine the

witnesses. The learned counsel for the petitioner also relied on State of

U.P v. Shatrughan Lal & Anr, J.T 1995 (6) SC 55 to contend that since

the petitioner was not given the copies of the statements of the

witnesses recorded during the preliminary enquiry, the entire enquiry

proceedings are vitiated.

15. The writ petition is contested by the respondents who filed the

counter affidavit dated 11th August, 2000. The respondents denied that

the suo motu Revisional power exercised by the DIG was illegal. The

respondents asserted that although there was no provision for

exercising suo motu review of the disciplinary case under the CISF Act,

1968, however, all such suo motu revisions undertaken in absence of

the provision in CISF Act, 1968 had been validated by the Parliament

while amending the CISF Act, 1968 on 29th December, 1999. The

respondents categorically contended that the petitioner has tried to

mislead the Court regarding the consumption of liquor by him by

relying on the medical documents. According to respondents, the

evidence of the witnesses categorically established that the petitioner

had consumed alcohol, and that he had misbehaved with the senior

officers and had used unparliamentary/abusive and threatening

language. It was also urged that the present incident of the petitioner

was not a solitary incident, as he had been punished several times on

previous occasions which have been detailed hereinabove and in the

circumstances, the punishment of removal from service by the

respondents was justified and thus cannot be held to be

disproportionate.

16. The learned counsel for the respondents refuted the plea of the

petitioner that he was not given the copy of the preliminary report. The

counsel pointed out that the petitioner himself had admitted in his

representation that he was given the copy of the preliminary report.

Rather, he had stated that he was not given the copy of the statements

recorded during the preliminary enquiry. The learned counsel for the

respondents, Dr.Bhardwaj contended that the report of the preliminary

enquiry, a copy of which was given to the petitioner, in fact, detailed the

statements given by the various witnesses during the preliminary

enquiry and in the circumstances, the petitioner cannot claim that he

had been prejudiced in any manner. The counsel also pointed out that

the petitioner did not even raise this plea in his appeal against the order

of removal passed by the respondents, nor was any such plea has been

raised by the petitioner in the writ petition. The learned counsel for the

respondents also refuted the plea of the petitioner that there was no

sufficient evidence to hold that the petitioner had consumed liquor and

had misbehaved. He relied on a decision of the Division Bench of this

Court in W.P(C) No.8063/2011 titled as „Om Prakash Rai v. Union of

India & Ors‟ dated 12th December, 2011 holding that even if there was

no medical evidence but if other cogent evidence is available of the

witnesses from which it can be inferred that the delinquent had been

under the influence of alcohol, the findings of the enquiry officer on the

basis of such evidence cannot be held to be perverse nor can it be set

aside on the ground that no evidence was available.

17. This Court has heard the learned counsel for the parties and have

perused the record of the enquiry proceedings produced by the

respondents. This Court has also perused the statements of witnesses

recorded before the Enquiry Officer.

18. Regarding the plea of the petitioner that he was not allowed to

cross examine the witnesses, from the perusal of the testimonies of the

witnesses recorded before the Enquiry Officer, it is apparent that the

petitioner did not cross-examine the witnesses, though the opportunity

was given to him. The petitioner was also duly represented by a defense

assistant. The petitioner had cross-examined only one witness, namely,

Tulsi Ram, PW8. The other witnesses, PW-1 to PW-6 had deposed

against the petitioner categorically stating that the petitioner had

become violent and had even used abusive language. PW-1, J.S.Negi,

Assistant Commandant stated that the petitioner was making noise and

abusing continuously in un-parliamentary language to his senior

officers which had created a very bad scene at the Unit Lines where a

large number of Unit personnel were staying. As he was creating

nuisance, he was taken to the Police Station and he appeared under the

influence of liquor. Sh.J.S.Negi deposed that the pistol in question was

examined by the SHO of the Police Station, but he could not find out

whether it was a country made pistol or a toy pistol. Thereafter, the

petitioner had told the SHO that it was a toy pistol and the petitioner

himself had displayed the operation of the same. Assistant

Commandant, Sh.J.S.Negai, PW-1 also deposed that the SHO was

satisfied with the explanation given by the petitioner, and had returned

the pistol and sent the petitioner for medical examination. However, it is

pertinent to note that even though the said witness had categorically

deposed that the petitioner was under the influence of alcohol, and he

had creating nuisance by using four letters expletives, however, still he

was not cross-examined by the petitioner. The Enquiry Officer had even

sought a clarification from Sh.J.S.Negi requiring him to specify the

exact language used by the petitioner at that time, to which the

Assistant Commandant deposed that the petitioner had stated, as to

how he could have become an Inspector and that he would finish him

and also abused him by using four expletive words which have been

recorded verbatim in the statement of the PW-1. Regarding the

petitioner being under the influence of liquor, when it was put to the

said witness that as per the medical report, there was no smell of

alcohol, while on the other hand the said witness had deposed that he

had consumed the alcohol, Mr.J.S.Negi, Assistant Commandant had

deposed that when he had gone to "A" Company barrack and the

petitioner was standing in front of him he smelled of alcohol. He also

deposed that later on again in the presence of others when he

continued to create a nuisance, he was still smelled of alcohol.

According to the said witness, the medical examination was conducted

very late, and, therefore, there is possibility that the smell of the alcohol

had been over by that time. On behalf of the petitioner, however, his

defense assistant did not refute the statement made by Sh.J.S.Negi,

Assistant Commandant. It was also not put to him that the petitioner

did not smelled of alcohol nor had any mala fides or bias had been

attributed by the petitioner to the said witness. PW-2, Sh. B.N. Bej also

reiterated and supported the statement of Sh.J.S.Negi, Assistant

Commandant, PW-1 about the nuisance by the petitioner and the use of

the four letters expletive used by him while abusing seniors, however,

even the said witness was not cross-examined by the petitioner though

the opportunity was given. The next witness PW-3 was Rudresh Kumar

who categorically deposed that the petitioner had used four letters

expletive against the Assistant Commandant and told him "Boss Banta

Hai". He stated that the petitioner had assaulted him and since he

resisted, a scuffle took place, when he saw the pistol lying near his bed,

which he took and handed over to Sh. JS Negi. He had also

accompanied Assistant Commandant, Sh.J.S.Negi, and the petitioner to

the Police Station. The said witness also was not cross-examined

despite opportunity being granted to the petitioner. PW-4,

B.Guruswamy, was categorical in deposing that the petitioner was

intoxicated and he had threatened the Assistant Commandant with dire

consequences by stating that "he will finish him". He also reiterated the

four letters expletive words used by the petitioner. Even to the said

witness nothing was put in the cross-examination on behalf of the

petitioner that the petitioner was not under the influence of liquor or

that the witness has deposed falsely that the petitioner was under the

influence of liquor or that he had been falsely implicated on account of

some other prejudice or bias of the said witness or the other witnesses

against him.

19. PW-5, Sh.Ram Kishore, only deposed about the pistol under the

papers, whereas PW-6 Sh.S.V.Bhai, Assistant Commandant, deposed

about the filthy language used by the petitioner while abusing the

Inspector and the other officials in the presence of a large number of the

personnel of the Unit. The said witness again was not cross-examined

despite the opportunity given to the petitioner.

20. Though the petitioner had stated that he was under pressure,

however, when the inquiry was shifted from Burnpur to Durgapur, on

31st December, 1996, the petitioner was again given another

opportunity to cross-examine PWs 1, 2 and 3, and therefore, he had

nothing to fear or have any reason to feel pressurized. However, the

petitioner did not avail the opportunity to cross-examine PW-1,

Sh.J.S.Negi, Assistant Commandant, PW-2 Sh. B.N.Bej or PW-3

Sh.Ruddresh Kumar. Thus if these witnesses have deposed

categorically that the petitioner was under the influence of liquor and

have also given the explanation that when the medical examination was

done after considerable time, the smell and effect of the liquor might

have waned, then the deposition of these witnesses cannot be ignored.

In any case, this Court in exercise of its power of judicial review does

not have to re-appreciate the entire evidence and come to a different

conclusion or inference even if they are feasible nor have to substitute

the inferences drawn by the Enquiry Officer with its own inferences,

unless and until there is any illegality, perversity or procedural

impropriety on the part of the Enquiry Officer, or if the conclusions of

the Enquiry Officer have been arrived without any material or document

available on the record or the relevant documents had been ignored

without any basis. However, the learned counsel for the petitioner is

unable to show any relevant evidence which had not been considered by

the Enquiry Officer or any documents which had not been considered

by the Enquiry Officer while concluding that the charges against the

petitioner were made out. Merely because at the time of the medical

examination, which was admittedly done much later after the alleged

incident, if the smell of alcohol was not deducted, it could not be

inferred that the petitioner was not under the influence of alcohol when

he created the nuisance and abused the superior officials in the

presence of the other personnel of the Unit. The enquiry officer in the

facts and circumstances had considered the medical report which was

also based on the observation of the medical officer about the smell of

alcohol emanating from the petitioner and not on the basis of any test

carried out on the petitioner detecting the extent of alcohol in his blood

and other fluids. The enquiry officer after considering the statements of

the witnesses whose testimonies remained unrebutted and the medical

report has believed the testimonies of the witnesses and in the

circumstances it cannot be contended on behalf of the petitioner that

the findings of the enquiry officer are perverse or could not be arrived at

by any ordinary person.

21. In the circumstances, the findings of the Enquiry Officer cannot

be faulted on any of the grounds raised by the petitioner, nor is the

petitioner entitled to contend that the Enquiry Officer has committed

procedural irregularity in not allowing him to cross-examine the

witnesses. From the record, it is apparent that the petitioner and his

defense assistant was given ample opportunity to cross-examine the

witnesses in Burnpur and even when the inquiry was shifted from

Burnpur to Durgapur, however, it was not availed by the petitioner or

his defense assistant. The plea of the petitioner that he did not cross-

examine the witnesses at Burnpur on account of threat or pressure on

him also cannot be accepted in these circumstances. In WP(C) 8063 of

2011 titled as „Ct.Dvr. Om Prakash Rai v. UOI‟ decided on 12.12.2011 it

was held that the findings of the Enquiry Officer were based on the

evidence of witnesses, whereby they had deposed both before the Court

of Inquiry and the Enquiry Officer that they had found the delinquent

smelling of alcohol which was also not refuted by cross examining those

witnesses specifically on this point by the charged officer. It was further

held that the said testimonies could not be disbelieved solely on the

basis of endorsement on the medical certificate which was only based

on the observation of the Doctor that the delinquent was not smelling of

alcohol, since it wasn‟t on the basis of any tests carried out at the time

of the medical examination to ascertain the extent of alcohol in the

charged officer‟s blood and other bodily fluids.

22. In the circumstances, it is inevitable to infer that the findings of

the disciplinary authority are based on cogent and reliable evidence

holding that the charges against the petitioner are made out. In the

disciplinary proceeding the charges imputed against a charged officer

are not to be proved like it is during a criminal trial i.e. beyond all

reasonable doubts. The Disciplinary Authority, on analysing the

evidence and documents, is to arrive at a conclusion that there is a

preponderance of probability in favour of the establishment of the

charges on the basis of the material on record. While doing so, the

Disciplinary Authority cannot take into consideration any irrelevant

fact, nor can it refuse to consider the relevant facts. Assumptions

cannot be made by the Disciplinary Authority, nor can the burden be

shifted, nor can the relevant testimonies of the witnesses be rejected

only on the basis of surmises and conjectures, nor can there be an

inquiry into an allegation with which the charge officer has not been

charged with. The learned counsel for the petitioner has not been able

to show any such irregularity in the reasoning of the enquiry officer and

the disciplinary authority in the facts and circumstances.

23. The grounds on which administrative action is subject to control

by judicial review are, "illegality"; "irrationality" and "procedural

impropriety". This Court will not interfere in such matters unless the

decision is tainted by any vulnerability like illegality, irrationality and

procedural impropriety. Whether action falls within any of the

categories is to be established and mere assertion in that regard may

not be sufficient. To be "irrational" it has to be held that on material, it

is a decision "so outrageous" so as to be in total defiance of logic or

moral standards. If the power is exercised on the basis of facts which do

not exist or are patently erroneous, such exercise of power shall be

vitiated. Exercise of power will be set aside if there is manifest error in

the exercise of such power or the exercise of power is manifestly

arbitrary. To arrive at a decision on "reasonableness" the court has to

find out if the authorities have left out any relevant factors or taken into

account any irrelevant factors. It was held in (2006) 5 SCC 88,

M.V.Bijlani Vs Union of India & ors. that the judicial review is of the

decision making process and not the re-appreciation of the evidence.

The Supreme Court in para 25 at page 96 had held 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.

Similarly in (1995) 6 SCC 749, B.C.Chaturvedi v. Union of India &

ors Supreme Court at page 759 has held as under:-

12. 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 inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry 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 inquiry 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 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 inquiry 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.

24. The learned counsel for the petitioner also contended that the

petitioner was not supplied with the copy of the preliminary enquiry

report and consequently the entire enquiry proceedings and the

punishment imposed upon the petitioner are vitiated. Perusal of the

record reveals that no such plea has been taken by the petitioner in the

writ petition nor has it been alleged as to how the petitioner was

prejudiced on account of the alleged non-supply of the copy of the

preliminary report. In response to the charge memo dated 25th October,

1996, the petitioner had filed a reply dated 9th November, 1996. In the

said reply, the petitioner did not raise the plea that he had not been

supplied with the copy of the preliminary enquiry report and that he

had been prejudiced on account of it. After the enquiry was conducted,

a copy of the same was supplied to the petitioner and he was asked to

give his reply to the findings of the enquiry officer's report. The

petitioner had filed a reply dated 12th March, 1997 in which the

petitioner rather admitted that he had been provided with a copy of the

preliminary enquiry report dated 16th September, 1996 contrary to the

pleas raised on behalf of the petitioner that he was not supplied with

the copy of the preliminary enquiry report. The petitioner in the said

reply had, however, contended that though he was supplied with the

copy of the preliminary enquiry report but he was not supplied with the

copy of the statements of the witnesses which were recorded in the

preliminary enquiry. As to what prejudice was caused to him, he

contended that he could not judge as to whether the witnesses had

actually deposed what was recorded by the Preliminary Enquiry Officer.

The Disciplinary Authority had held that the deposition of all the

witnesses were recorded in his presence during the regular enquiry as

was in the preliminary enquiry report. The petitioner was given full

opportunity during the regular enquiry to cross examine the said

witnesses, however he did not cross examine any of the witnesses

despite the opportunity given to him on the ground that he did not have

the copies of the statements of the witnesses examined during the

preliminary hearing. In any case, the enquiry officer while establishing

the charges against the petitioner has not relied on any of the

statements of any of the witnesses recorded during the preliminary

hearing. In any case, since the copy of the preliminary enquiry report

was given to the petitioner, solely on the basis of the allegation that he

could not have know if the statements of the witnesses in the

preliminary enquiry were recorded as given by them, it cannot be

inferred that it would have caused any prejudice to the petitioner. In the

circumstances, it is difficult to infer that such prejudice was caused to

the petitioner on account of non-supply of the copies of the statements

the witnesses recorded during the preliminary enquiry, which were in

any case not relied on or referred to by any of the authorities while

establishing the charges against the petitioner, so as to vitiate the entire

enquiry proceedings and the punishment awarded to the petitioner. The

Supreme Court in Union of India v. Alok Kumar, (2010) 5 SCC 349, at

page 379 had held that the prejudice should not be based on mere

apprehension. The Supreme Court had held as under:

"89. The well-established canons controlling the field of bias in service jurisprudence can reasonably be extended to the element of prejudice as well in such matters. Prejudice de facto should not be based on a mere apprehension or even on a reasonable suspicion. It is important that the element of prejudice should exist as a matter of fact or there should be such definite inference of likelihood of prejudice flowing from such default which relates to statutory violations. It will not be permissible to set aside the departmental enquiries in any of these classes merely on the basis of apprehended prejudice."

25. The case of Shatrughan Lal & Ors. (supra) relied on by the

petitioner is apparently distinguishable. In the said case, the

documents which were proposed in the charge sheet to be produced in

the departmental proceedings as proof in support of the articles of

charges were not supplied to the delinquent. It was also admitted by the

authorities that the documents were not supplied to the delinquent and

they could be examined by him at any time. It was further noticed that

the statements recorded during the preliminary enquiry were also not

supplied to the delinquent. Thus, it was held that the copies of the

documents relied upon in support of the charges must be supplied to

the charged officer and that he ought to be given an opportunity to

inspect them, as in this case the documents were voluminous.

Regarding non-supply of the copies of the statement during the

preliminary enquiry it was held by relying on Kashinath Dikshita v. UOI

& ors. (1986) 3 SCC 229 that the non-supply of the documents relied on

by the enquiry officer would vitiate the enquiry unless it is shown and

established as a fact that the non-supply of copies of the documents

had not caused any prejudice to the delinquent in his defence.

Admittedly, in the case of the petitioner the copy of the preliminary

enquiry report was supplied to him which also contains the gist of the

statements made by the witnesses in the preliminary enquiry. The

copies of all the documents relied in the charge sheet were also supplied

to the petitioner. The petitioner however, has failed to establish as a fact

that the non-supply of the full statements recorded during the

preliminary enquiry has prejudiced him in any manner. What was

stated by the petitioner was that he could not have known whether the

depositions of the witnesses in the preliminary enquiry were correctly

recorded or not. In any case, the statements of the witnesses in the

preliminary enquiry had not been relied on by the respondents in

establishing the charges against the petitioner. In reply to the charge

sheet, the petitioner did not demand that the copies of the statements

recorded during the preliminary enquiry should be given to him and

that he had been prejudiced in any manner on account of it. The

petitioner has also not averred in the writ petition as to how he had

been prejudiced on account of the non-supply of the copies of the

statements recorded during the preliminary hearing even though a copy

of the preliminary enquiry report was supplied to the petitioner. The

case as relied on by the petitioner is apparently distinguishable and

relying on the ratio of the same, it cannot be held that in the case of the

petitioner the enquiry proceedings and the punishment awarded to the

petitioner are to be vitiated. It is well settled that a little difference in

facts or additional facts may make a lot of difference in the precedential

value of a decision. The ratio of one case cannot be mechanically

applied to another case without having regard to the factual situation

and circumstances in the two cases. The Supreme Court in Bharat

Petroleum Corporation Ltd and Anr. v. N.R.Vairamani and Anr. (AIR

2004 SC 778) had held that a decision cannot be relied on without

considering the factual situation. In the said judgment, the Supreme

Court had observed as under:-

" Court should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. Observations of Courts are neither to be read as Euclid's theorems nor as provisions of the statute and that too taken out of their context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it

may become necessary for judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgments. They interpret words of statutes; their words are not to be interpreted as statutes.

In Bhavnagar University v. Palitana Sugar Mills Pvt Ltd (2003) 2

SC 111 (vide para 59), the Supreme had observed:-

"It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision."

26. It is also pertinent to note that the petitioner had admitted his

guilt before the Criminal Court and he was punished for the same.

Therefore, the petitioner cannot be allowed to plead now that he

admitted his guilt because he could not have contested the case on

account of his postings and various other factors as alleged by him. The

learned counsel for the petitioner has not been able to show any rule or

precedent holding that if a delinquent is punished by a Criminal Court,

then he cannot be punished for the same misconduct on his part, by

the Department in the disciplinary proceedings. The plea to this effect

in the facts and circumstances cannot be accepted.

27. The plea of the petitioners that the punishment imposed upon

him is disproportionate to the charges proved against him also cannot

be accepted in the facts and circumstances. The misconduct for which

the petitioner has been punished is not the solitary incident. The

respondents have taken into consideration his previous record before

awarding the punishment. There is application of mind in the facts and

circumstances, by the respondents and it cannot be held that the

punishment has been awarded without considering the relevant factors.

In the circumstances, the petitioner has not been able to make out a

case of disproportionate punishment awarded to him.

28. For the foregoing reasons and in the totality of facts and

circumstances the petitioner has failed to make out a case of illegality,

irrationality or perversity in the actions and decisions of the

respondents so as to require any interference by this court in exercise of

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

petition in the facts and circumstances is without any merit and is

liable to be dismissed. The writ petition is therefore, dismissed. Parties

are however, left to bear their own costs.

ANIL KUMAR, J.

APRIL     9, 2012                    SUDERSHAN KUMAR MISRA, J.
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