Satish Kumar Dahiya vs Union Of India & Ors.
2012 Latest Caselaw 1815 Del

       *      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                       Date of Decision: 16.03.2012

+                       W.P.(C) No.4133/1999


Satish Kumar Dahiya                             ...      Petitioner

                                versus

Union of India & Ors.                           ...      Respondents

Advocates who appeared in this case:

For the Petitioner      :     Mr.H.S.Dahiya
For Respondent          :     Ms.Archana Gaur

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

ANIL KUMAR, J.

*

1. The petitioner has challenged the order of dismissal dated 20th

August, 1997 passed by the Disciplinary Authority which was on the

basis of the report given by the Inquiry Officer. He has also sought

reinstatement in the service w.e.f. 20th August, 1997 with all the

consequential benefits and back wages.

2. The petitioner, a Constable of the Central Industrial Security

Force (hereinafter referred to as „CISF‟) was issued a charge memo dated

26th June, 1996 under Rule 34 of the CISF Rules, 1969 for the alleged

acts of misconduct, indiscipline and moral turpitude. It was stipulated

in the charge sheet that on 12th June, 1996 during the weekly checking,

the petitioner was found to be absent from the duty without permission.

It was further stated that he got involved in an altercation with

Constable Kewal Krishna and W/Cr Pradeep Kumar of the CISF Unit

and subsequently assaulted them under the influence of liquor thereby

causing bodily injuries and disturbing the peace and also that on the

pretext of making a telephone call from the Duty officer‟s room on 13th

June, 1996 at about 0300 hours, he tore the pages 63 to 67 from the

General Diary kept in the room of the duty officer.

3. The charge memo dated 25th June, 1996 was received by the

petitioner on 6th July, 1996. The petitioner sought the Hindi translation

of the charge memo on 8th July, 1996, which was given to him on 10th

August, 1996.

4. In the charge memo, the list of the documents relied on by the

respondents were the statements of HC/GD J.K.Patra, Unit BHM,

Constable Bhushan Kumar, L/Naik P.G.Bhai, HC/GD Hamid Khan,

Constable Jaydev Ghosh; GD Extract made at 0405 hours on 13.06.96;

Statements of Constable Kewal Krishna, Constable Sharief Ali,

Constable Karambir Singh, Constable Jaipal Singh, Constable Jitender

Singh, Constable Lakhvir Singh, Constable Kishori Lal, Constable

Dharambir Singh, HC/GD Mans Goswami, HC/GD B.N.Murmu and

W/C Pradeep Kumar.

5. The petitioner replied to the memorandum of charges by reply

dated 2nd September, 1996 and denied all the allegations made in the

charge memo and contained in the documents annexed with the

memorandum of charges. He denied that he had committed any gross

misconduct and indiscipline or that he had been absent from the Unit

lines. He alleged that he had been wrongly and unnecessarily implicated

in the incident for no fault of his.

6. The respondents finding the reply of the petitioner unsatisfactory,

appointed an Assistant Commandant as the Inquiry Officer to enquire

into the charges framed against the petitioner.

7. The Inquiry Officer during the inquiry had noted that on 20th

December, 1996 the preliminary hearing was conducted, during which

it was confirmed that the petitioner had received the memorandum of

charges and had submitted his reply after understanding the contents.

It was further noted that the petitioner had also confirmed that he had

received the copies/extracts of documents by which the articles of

charge were proposed to be sustained. The Inquiry Officer had also

noted that during the course of the study of the documents, a

discrepancy was observed in the timing mentioned in the original

charge memorandum and consequently, the letters dated 20th

December, 1996 and 29th January, 1997 were sent to the Group

Commandant for amending the charge memorandum. On 5th February,

1997 the amended charge memorandum was received and the

petitioner again pleaded `not guilty‟ and thereafter, the inquiry was

conducted in eight sittings. The Inquiry officer had noted and discussed

the statements of HC/GD J.K.Patra, Unit BHM; Constable Bhushan

Kumar; L/NK P.G.Bhai; HC/GD Hamid Khan; Constable Jaydev Ghosh;

GD Extract made at 0405 hours on 13.06.96; Statement of Constable

Kewal Krishna; Constable Sharief Ali; Constable Karambir Singh;

Constable Jaipal Singh; Constable Jitender Singh; Constable Lakhvir

Singh; Constable Kishori Lal; Constable Dharmbir Singh; HC/GD Mans

Goswami; HC/GD B.N.Murmu and W/Cr Pradeep Kumar and also took

into consideration their statements, which were recorded during the

preliminary hearing, which had been exhibited during the inquiry

proceedings. The statement of the petitioner and the statement of the

petitioner‟s witnesses, namely, Mahendra Singh was also considered

and on analyzing the documents and evidence on record it was held

that charge No.1 and 3 were proved beyond doubt, however, benefit of

doubt was given to the petitioner with regard to Charge No.2. The

analysis of evidence and document done by the Inquiry Officer in his

report is as under:-

ANALYSIS

"As regards Charge No.I: Inquiry Officer gives credence to the statement of HC/GD J.K.Patra Unit BHM that on 12- 06-96 Const. Satish Kumar, who found absent from the Unit lines without permission when checked by HC/GD J.K.Patra at 2200 hours. The undersigned finds no reason as to why HC/GD J.K.Patra would furnish wrong information with ulterior motives, to falsely implicate the

charged MOF. The undersigned utterly disregards the statement of L/NK P.G.Bhai and is of the firm opinion that L/NK P.G.Bhai is suppressing facts just to save Const. Satish Kumar."

As regards Charge No.II: The Undersigned, on carefully going through the statement of other PWs, doesn‟t find any conclusive evidence regarding complicity of the charged MOF vis-à-vis the charge levelled against him that he, accompanied by Const. P.V. Sreekumar, Const. P. Ambugandhi etc, assaulted Const. Kewal Krishna & W/Cr. Pradeep Kumar of CISF Unit ONGC Uran. Though one of the PW, Const. Kewal Krishna in his statement has confirmed the involvement of Const. Satish Kumar in the whole episode, but the charge could not be substantiated by the statement of W/Cr. Pradeep Kumar and other PWs. Undoubtedly, on 12-06-96 at about 2335 to 2345 hours Const. Kewal Krishna & W/Cr. Pradeep Kumar were assaulted by some persons which is confirmed by the statement of PWs and the medical reports of the doctors to that effect. However personal involvement of Const. Satish Kumar has not been substantiated. Hence it would be fair to give the charged MOF benefit of doubt in this regard.

As regards Charge No.III: On going through the statement of PW Const. Bhushan Kumar & other PWs it has been confirmed that pages 63 to 67 of the general diary kept in the room of Duty Officer were torn. The involvement of Const. Satish Kumar along with Const. P.Ambugandhi & Const. P.V. Sreekumar is beyond doubt as it is confirmed that the said persons made phone calls at 0215 hours and 0300 hours on 13-06-96 from the phone kept near the Quarter Guard. It is a fact that Const. Satish Kumar in his deposition during PE had confirmed to have made phone calls twice from the phone near Quarter Guard on 13.- 06.96.

However, during enquiry he negated the earlier statement taking the plea of having signed that statement without understanding its contents. However, Const. Satish Kumar confirmed that he had never reported about this to his senior official. Hence this plea is rejected being on flimsy grounds. Furthermore, the pages of GD from 63 to 67 also contained entry related to absence of Const. Satish Kumar made by Unit BHM. Though Const. Satish Kumar might not have torn the pages himself but he had knowledge of this misconduct and abetted it by not

restraining his colleagues and not informing senior authorities the factual position about this act of indiscipline. The statement of Defence witness has been given due consideration that from his statement the complicity of Const. Satish Kumar is not categorically refuted."

8. The Disciplinary Authority agreed with the report of the Inquiry

Officer and observed that the charge of beating the Constable and Water

Carrier Pradeep Kumar could not be proved because it was night time

and all the force members of that unit were fast asleep at the time.

Considering the gravity of the charge proved against the petitioner, the

Disciplinary Authority awarded the punishment of dismissal from

service by order dated 20th August, 1997.

9. The petitioner aggrieved by the order of dismissal from service

dated 20th August, 1997, filed an appeal which was, however, dismissed

by the Appellate Authority by order dated 24th March, 1998.

10. The petitioner also preferred a revision petition against the order

of the rejection of the appeal. The Revisional Authority, however, too did

not find any procedural flaw in the departmental inquiry and dismissed

the revision petition and upheld the penalty of dismissal from the

service on account of the serious misconduct of the petitioner.

11. Aggrieved by the order of dismissal from service dated 20th

August, 1997, the petitioner has filed the present writ petition, inter-

alia, on the grounds that the statements of the witnesses were not

recorded during the departmental proceeding and that instead the

statements of the witnesses in the preliminary inquiry were taken on

record as the final statements of the witnesses. The petitioner in the

writ petition has further contended that the petitioner was not supplied

with the copies of the said statements and thus, his right to defend was

jeopardized because the statements of the witnesses were not recorded

in the regular inquiry. The petitioner also contended that the findings of

the respondents that he was absent from the unit line was perverse as

the inquiry officer had only taken into consideration the statement of

the Head Constable J.K.Patra, which was not credit worthy as it was

unsupported by any of the other witnesses. According to the petitioner,

the said witness Head Constable J.K.Patra had stated that he checked

the barracks at 2200 hours and found the petitioner to be absent,

however, he did not enquire from anybody if the petitioner was absent

or not. He also contended that the statement of the Head Constable

Mahendra Singh had not been rightly appreciated, as he was present in

the barrack and he had testified that the petitioner had gone to the

bathroom at the relevant time. The petitioner also emphasized on the

alleged contradictions in the statement of Head Constable J.K.Patra and

line sentry, L/Naik P.G. Bhai. The petitioner also contended that the

findings in respect of the charge No.3 are not sustainable as the Inquiry

Officer himself has given the finding that "though Constable Satish

Kumar might not have torn the pages himself but he had the knowledge

of this misconduct and abetted it by not restraining his colleagues and

not informing the senior authority about the factual position of this act

of indiscipline." According to the petitioner, he had not even entered

into the room where the General Diary was kept and thus, there could

not have been any possibility of the petitioner tearing away the pages of

the General Diary. He also placed reliance on the testimony of

Constable Bhushan Kumar, who had stated that he did not see anyone

tearing the pages of the General Diary, and that he had only seen

Constable P.Ambugandhi going into the duty officer‟s room where the

General Diary was kept.

12. The petitioner has also challenged the order of the Disciplinary

Authority on the ground that the Disciplinary Authority had disagreed

with the Inquiry Officer‟s findings with regard to charge No.2 by holding

that "on 12th June, 1996 at about 2200 hours, the petitioner was found

absent when checked by BHM and at 2300 hours, the petitioner took

Constable P.V.Shreekumar and Constable P.Ambugandhi of CISF Unit

JNPT Sheva to the CISF Unit ONGC Uran Lines and there these force

members beat Constable Krishan Kumar and W/Cr Pradeep Kumar

and hit them with a iron rod and the broken bottle. After this incident

these force members came to CISF Unit JNPT Sheva". The petitioner

contended that since the findings of the Disciplinary Authority were

different from the findings of the Inquiry Officer and inspite of this no

disagreement note was issued by the Disciplinary Authority, nor was

the petitioner asked to submit any reply in this regard, therefore, the

entire disciplinary proceedings are vitiated even on this ground.

According to the petitioner, the findings as noted above by the

Disciplinary Authority are perverse as they are based on surmises and

conjectures only. It is contended that such findings had influenced the

decision of the Disciplinary Authority to impose the severe punishment

of dismissal and therefore, the final order of dismissal is vitiated and is

bad in law.

13. The writ petition is contested by the respondents who filed reply

dated 28th April, 2000. This Court on 15th November, 2011 had noticed

that the reply filed on behalf of the respondents did not disclose any

particulars of the deponent and consequently, the reply filed could not

be considered, and therefore, a cost of Rs7500/- was imposed on the

respondents and they were given another opportunity to file an

appropriate reply. Consequent to the said order, another affidavit of

Sh.Sanjay Kumar, Senior Commandant of CISF Unit JNPT Sheva, Navi

Mumbai dated 13th December, 2011 was filed. The respondents

reiterated that the petitioner was found absent from his bed at about

2200 hours during the routine check by the BHM on 12th June, 1996.

At around 0300 hours on 13th June, 1996 while on a second visit of

HC/GD (BHM) J.K.Patra, the petitioner was found sleeping on his bed,

and therefore, a GD entry was made by him in the quarter guard. The

respondents also contended that on the same day, the petitioner had

assaulted Constable Kewal Krishan and W/Cr Pradeep Kumar with a

rod and a bottle and that as per the statement made by Constable

Kewal Krishan and HC/GD Manas Goswami, the petitioner was present

in the CISF Unit ONGC Uran on 12th June, 1996 around 2335 hours to

2345 hours and during that period he along with the other personnel

had assaulted Constable Kewal Krishan and warned him with dire

consequences.

14. The respondents asserted that on becoming aware of the fact that

BHM must had made a absent report/GD entry about him in the

quarter guard, he along with Constable P.Ambugandhi and Constable

P.V.Sreekumar had gone to quarter guard at about 0215 hours and

thereafter, again went to quarter guard at 0300 hours for making

telephone calls which was kept there for making emergency calls.

Though the petitioner had made a call and he was supposed to enter

his name in the register kept there, however, he did not enter his name

in the said register. On the second visit, the petitioner was talking over

the phone while the accomplice namely Constable P.Ambugandhi had

gone inside the room of the duty officer where the G.D. was kept. After

some time, one Constable Bhushan Kumar who was seeing them from

distance making the call, went inside the duty officer‟s room, where he

found that seven pages of the GD were missing. The respondents

contended that the pages were those in which the absent report of the

petitioner was marked. Consequently, the quarter guard sentry reported

to the Guard Commandant and the Unit BHM immediately. Even

though the respondents have admitted that it is possible that the

petitioner may not have torn the pages himself, however since he must

have the knowledge of the misconduct and abetted it as it solely

benefitted him only, therefore, by neither restraining his colleagues nor

informing the senior authorities, which fact was duly noted by the

enquiry officer and accepted by the Disciplinary Authority, it was held

that Charges I and III were proved against the petitioner.

15. The petitioner thereafter, filed a rejoinder affidavit dated 28th

January, 2012 denying the allegations made in the counter affidavit

filed on behalf of the respondents and reiterated his pleas and

contentions raised in the writ petition.

16. Learned counsel for the petitioner also relied on the decision of

the Calcutta High Court reported as 1981 (2) SLR 182, J.K.Misra v.

Director General of Police and Ors., holding that the failure to give the

copies of the preliminary inquiry and the evidence adduced in such

preliminary inquiry, will be a denial of the reasonable opportunity and

that the disciplinary proceedings would be vitiated on account of it. The

petitioner also placed reliance on JT 1995 (6) SC 55, State of U.P. v.

Shatrughan Lal & Anr. holding that the principle of natural justice is

that a person against whom an action is proposed to be taken has to be

given an opportunity of hearing which should be an effective

opportunity and not a mere pretence. Preliminary inquiry which is

conducted invariably behind the back of the delinquent employee may,

often constitute the whole basis of the charge sheet and therefore,

before a person is called upon to submit his reply to the charge sheet he

must, on a request made by him be supplied the copies of the

statements of witnesses recorded during the preliminary inquiry

particularly if those witnesses are proposed to be examined at the

departmental trial.

17. Learned counsel for the respondents, Ms.Archana Gaur, has

refuted the pleas and contentions raised by the petitioner and

contended that the statements of the witnesses recorded during the

preliminary inquiry were relied on since the documents were already

incorporated in the list of documents stipulated in the charge sheet and

the copies of the same were supplied to the petitioner. Referring to the

reply dated 2nd September, 1996 and the statement of the witnesses

recorded during the inquiry proceedings, it is contended that the

petitioner never raised any objection that he had not been supplied the

copies of the statements recorded during the preliminary hearing. She

stated that the statement of the witnesses recorded during the

preliminary hearing were duly exhibited and proved, and that the

petitioner rather cross-examined the witnesses on the basis of the same

and never raised any objection that the copies of the statements were

not given to him. She contended that it is an afterthought of the

petitioner and is without any factual basis. Learned counsel also

referred to the appeal and revision filed by the petitioner in which the

petitioner did not even contend that he had not been supplied the

copies of the statements which were referred to in the memorandum of

charges and which were duly proved and exhibited during the inquiry

proceedings.

18. This Court has heard both the parties in detail and have perused

the record of the enquiry. A perusal of the record makes it abundantly

clear that the plea of the petitioner that the copies of the statements of

the witnesses recorded during the preliminary enquiry had not been

supplied to the petitioner has to be rejected, since the petitioner himself

in his reply to the memorandum of charges dated 25th June, 1996 had

categorically stated that he denies the allegations contained in the said

statements which had been supplied to him with the memorandum of

charges. Thus, the undeniable inference in the facts and circumstances

is that the statements of the witnesses recorded during the preliminary

enquiry had indeed been supplied to him before the commencement of

the inquiry proceedings. During the enquiry proceedings, the

statements of witnesses which were recorded in the preliminary

hearing, and which were relied on in the memorandum of charges, were

proved and exhibited, and the petitioner did not object to proof of these

documents. The petitioner rather cross examined the witnesses in

respect of statements recorded during preliminary hearing, the copies of

which statements were exhibited during the enquiry. This fact is further

substantiated by the Inquiry Report in which the Enquiry officer had

specifically noted that the petitioner had confirmed that he had received

the copies/extracts of the documentary evidence by which the articles

of charges were proposed to be established. Perusal of the appeal and

the revision filed by the petitioner against the order of dismissal, do not

divulge that any plea was taken by the petitioner regarding the

petitioner not supplied the statements of the witnesses recorded during

the preliminary enquiry. Thus this plea of the petitioner cannot be

accepted and it is an afterthought. If indeed the petitioner had not

received the documents relied on by the Inquiry Officer during the

proceedings, then he should have protested against the same at the first

opportunity when the memorandum of charges was given to him relying

on these statements and thereafter proving and exhibiting the same

during the enquiry proceedings.

19. The petitioner has also contended that the Inquiry officer erred in

merely reproducing what was stated during the preliminary enquiry by

the witnesses instead of recording afresh the statements of the said

witnesses during the inquiry proceedings. According to the petitioner,

this in itself would vitiate the entire proceeding since it gravelly

prejudiced the petitioner. However, on examining the provisions under

Rule 36 of the CISF Rules 2001, which prescribes the procedure for

imposing major penalties, it is clear that there is no prohibition

whatsoever in relying on the statements recorded during the

preliminary enquiry, as long as the charged officer has been made

aware of the same and its copies are duly supplied to charged officer.

The copies of the statements recorded during preliminary hearing relied

on by the Inquiry Officer had been supplied to the petitioner and thus

he was well aware of the allegations contained therein. During the

enquiry proceedings these documents were proved and exhibited

without any objection by the petitioner and the petitioner was given the

opportunity to cross examine the said witnesses, which he did and

consequently in the facts and circumstances it is clear that the

requirements of natural justice had been satisfied. Thus the petitioner

cannot contend that he had been prejudiced and his plea is untenable,

especially in light of the fact that the said statements had been

exhibited during the proceedings and their authenticity had been

verified by all the witnesses. The judgment of Shatrugan Lal (supra)

relied on by the learned counsel for the petitioner is distinguishable

since in the said matter the statements recorded during the preliminary

enquiry had not been supplied to the charged officer and thus it was

held that the principles of natural justice had not been complied with,

which is clearly not the case in the facts of the present matter, as the

copies of the statements of the witnesses recorded during the

preliminary enquiry had been supplied to the petitioner prior to

initiating the enquiry proceedings. Thus in the facts and circumstances

there is no ground to infer that the petitioner had suffered any

prejudice.

20. The petitioner also contended that the Disciplinary Authority had

differed with the findings of the Enquiry Officer with regard to charge II,

by holding that the same is proved and while doing so he did not

comply with the rules, since the disagreement note was not

communicated to the petitioner conveying the disagreement by the

Disciplinary Authority with the Enquiry Report, prior to passing the

final order. Thus it is contended that the order of the Disciplinary

Authority dismissing the petitioner from the service is not sustainable

in law. However, this plea must also fail since in the order of dismissal

dated 20th August, 1997 the Disciplinary Authority had expressly noted

that the Enquiry Officer had fully proved two charges out of three

against the charged officer to which the Disciplinary Authority had also

fully agreed. The Disciplinary Authority has not held that the charge II

stood proved on the basis of the evidence recorded during the enquiry

proceedings. The Disciplinary Authority had rather observed as to why

the charge II could not be proved. He had observed that it was night

time when the alleged misconduct had occasioned, due to which reason

all the force members had been asleep at the time. The observation of

the Disciplinary Authority in the dismissal order as to why the charge

could not be proved does not mean that the Disciplinary Authority has

held that the charge has been proved. The observation of the

Disciplinary Authority that the charge II could not be proved is as

under:

"4. The enquiry officer in his enquiry report has fully proved two charges out of three against the charged Force member with which I the undersigned also fully agree. Remaining absent by the Force member from the unit shows gross misconduct. It has also been fully proved against the Force member that he had tore few pages of the Daily Diary, the other charge against the Force member is that he by joining other two constables went to CISF Unit ONGC Uran at about 2335 hrs and caused beating to Constable Krishan Kumar and Water Carrier Pradeep Kumar and attached him with Iron rod and broken glass bottle. However, it could not be proved because it was night time and all the Force member of that Unit were fast asleep. It seems that the said Force member along with other members became absent from the JNPT Sheva‟s line at about 2200 hrs and straightway reached CISF Unit ONGC Uran Unit‟s line and caused beating to the Force members and then straightway came back to CISF Unit JNPT Unit‟s camp. It appears that the force member had carried out this act by a deliberate move so that no force member of the CISF Unit ONGC Uran may come to know of it and the work may also be done."

21. The observation by the Disciplinary Authority cannot be

construed to mean that the Disciplinary Authority has held that the

Charge II had been proved against the petitioner. There is no difference

of opinion with the findings of the Enquiry Officer by the Disciplinary

Authority. Since there was no disagreement between the enquiry

officer‟s findings and the Disciplinary Authority, there was no necessity

to issue a disagreement note by the Disciplinary Authority. It is also

pertinent to note that in the appeal against the order of dismissal, no

such plea had been taken by the petitioner. The grounds raised in

appeal are only against the findings of the Disciplinary Authority

regarding Charge I and Charge II. Thus it is evident that even as per the

petitioner the Disciplinary Authority had not meant to impute on the

basis of his observations that charge II had been proved which had also

been held by the enquiry officer.

22. The other pleas of the petitioner are that there is no evidence on

the record to substantiate the inferences of the Enquiry Officer, which

was the basis of the decision of the Disciplinary Authority to dismiss

the petitioner from the service. In exercise of its jurisdiction under

Article 226 of the Constitution of India the Court does not to sit in

appeal and assume the role of the Appellate Authority. Interference

under Article 226 is only justified in the face of perversity i.e. the

findings have been arrived at without any evidence or that the findings

are such that no person acting reasonably or with objectivity would

arrive at such a finding, or that there has been non application of mind.

23. Perusal of the statements of the witnesses and the reasoning of

the enquiry officer reveals that there is ample evidence on the record for

concluding on the guilt of the petitioner. Regarding Charge I, the

deposition of HC/GD J.K. Patra unequivocally establishes the

involvement of the petitioner. The petitioner has been unable to impute

any malafides against the said witness so as to substantiate his plea

that he had been falsely implicated in the present matter. The petitioner

has also contended that the enquiry officer was wrong in rejecting the

deposition of L/NK P.G. Bhai as it was substantial in proving that

HC/GD J.K Patra had not deposed correctly. The Enquiry Authority

has specified in the enquiry report that he had not relied on the said

testimony because in his view the said witness was suppressing the

facts to save the petitioner. A perusal of the statement of the L/KN P.G.

Bhai recorded during the proceedings also reveals the said witness

himself had been facing certain departmental enquiries and thus he

was not found to be credit worthy. This analysis and reasoning of the

enquiry officer cannot be termed to be irrational or perverse. In any

case, the said witness did not depose that the petitioner was present at

the unit lines during the time of checking or that he was not absent on

the 12th June, 1996. He had only deposed that he wasn‟t told to note

down the time of the petitioner‟s return to the unit lines by HC/GD J.K.

Patra. Nothing much turns on his deposition and the Inquiry Officer

cannot be faulted for not relying on the same while inferring the

culpability of the petitioner, nor his findings can be termed to be

perverse. The petitioner has also contended that the Inquiry Officer

failed to take into consideration the deposition of Constable Mahender

Singh who had deposed that the petitioner had gone to the bathroom at

the time the checking was done and had stated the same to HC/GD

J.K. Patra. From perusal of the deposition of Const. Mahender Singh, it

is evident that no such statement was made by him during the enquiry

proceedings. He had only deposed that the petitioner had left for 10

minutes to go to the bathroom since his stomach was upset. On being

asked if the BHM had come to the barrack in the night, he had

responded that he was sleeping and thus he did not know about it.

Thus he did not inform HC/GD J.K. Patra anything about the

whereabouts of the petitioner. In the facts and circumstances, the

enquiry officer cannot be faulted for not placing much reliance on the

testimony of Const. Mahender Singh.

24. With regard to Charge III, it is evident that the involvement of the

petitioner is established. The Enquiry Officer had placed reliance on the

deposition of Const Bhusan Kumar, who had deposed that on the date

of the incident he had twice seen the petitioner along with the Const. P.

Ambugandhi and Const. P.V. Sreekumar go into the Quarter Guard

where the diary from which the pages had been torn had been kept, for

the purpose of making calls. The Inquiry Officer also observed that in

the statement of the petitioner recorded during the preliminary enquiry

he himself had admitted that he had twice made the phone calls from

the phone near the Quarter Guard on 13th June, 1996. However, during

the enquiry proceedings the petitioner had resiled from his earlier

statement and stated that the said statement had been signed by him

without understanding the contents as it was written by the Coy.

Commander. However, the enquiry officer pertinently noted that if that

was the case then the petitioner would have reported the same to the

senior officials. Nevertheless, since he did not do so, his statement that

he had signed the statement during the preliminary enquiry without

understanding the same could not be accepted. The petitioner has also

contended that even though certain documents had been supplied to

him, however, his very own statement made during the preliminary

inquiry had not been given to him, which according to the petitioner

was relied on by the Enquiry Officer to prove charge II and which

thereby gravelly prejudiced him as he was unaware of the contents

contained therein. The petitioner has also contended that even the

Enquiry Authority had categorically noted that the petitioner himself

might not have the torn the pages of the diary in question, however,

inspite of this it was held that the charge had been proved against him.

It is also pointed out that the only witness Const. Bhusan Kumar on

whom reliance had been placed by the enquiry authority to substantiate

the guilt of the petitioner under Charge III, had himself very clearly

deposed that he had not seen the petitioner tearing the pages of the

diary.

25. The fact that the torn pages contained the details of the absence

of the petitioner from the unit lines on 13th June, 1996 has not been

denied by the petitioner. This shows that the pages were torn with a

view to protect the petitioner. Therefore, in the facts and circumstances

even though the petitioner had not himself torn the pages of the diary,

it cannot be denied that he was the only one to have gained from the

said act. Even though Constable Bhusan Kumar had deposed that he

did not see the petitioner tear the pages of the G.D. however, he had

also deposed that the pages from the diary had been torn during the

period when the petitioner along with his companions had gone to the

Quarter Guard to make the call. A perusal of the memorandum of

charges and the reasoning of the Enquiry Officer makes it abundantly

clear that the statement of the petitioner recorded during the

preliminary enquiry was not relied on to sustain the charges framed

against the petitioner. In the memorandum of charges that stipulated

the list of documents relied on with regard to the charges framed

against the petitioner, it does not specify the statement of the petitioner

recorded during the preliminary inquiry. The Enquiry Officer had

merely noted that the petitioner had contradicted his earlier statement

while deposing during the enquiry by stating that his earlier statement

had not been written by him and that he had signed it without

understanding its contents. The Enquiry Officer had repelled this plea

of the petitioner by observing that if that were the case then the

petitioner would have complained to the senior officials. However, since

he did no such thing, the petitioner‟s plea was considered to be an

afterthought. Nevertheless, there is nothing on record to show that the

earlier statement of the petitioner was the only evidence relied on to

base the finding of guilt of the petitioner with regard to charge III.

Instead it is clear that it was the deposition of Bhusan Kumar, which

led to the inference that the petitioner had been involved in the tearing

of the pages of the G.D. It is possible that the statement of the

petitioner recorded during the preliminary enquiry, had not been

supplied to him since the presumption is that he would be aware of its

contents. In any case, since it has not been relied on there was no

obligation on the part of the respondent to have supplied the same to

the petitioner. Thus, the petitioner has been unable to substantiate his

plea that the non-supply of his earlier statement had prejudiced him in

any manner. In Union of India (UOI) and Ors. Vs. Alok Kumar, AIR

2010 SC 2735 the aspect of prejudice was discussed at length and it

was held that 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 was further held that it

would not be permissible to set aside the departmental inquiries in any

of these classes merely on the basis of apprehended prejudice. The

Enquiry officer had also observed that even though the petitioner might

not have himself torn the pages of the diary, since the petitioner had the

knowledge of the misconduct and had abetted it by not restraining his

colleagues or informing the senior authorities, he would be liable for the

act of indiscipline. It is a settled law that a disciplinary proceeding is

not a criminal trial and thus the standard of proof required is that of

preponderance of probability and not of proof beyond reasonable doubt.

If a relevant evidence is accepted by the Disciplinary Authority, which

evidence may also reasonably support the conclusion that the officer is

guilty, it is not the function of the High Court exercising its jurisdiction

under Article 226 to review the findings and to arrive at independent

findings on the same evidence. In State of Andhra Pradesh v. Sree Rama

Rao, AIR 1963 SC 1723 it was held that where there are some relevant

evidence which the authority has accepted and which evidence may

reasonably support the conclusion that the officer is guilty, it is not the

function of the High Court exercising its jurisdiction under Article 226

to review the findings and to arrive at an independent findings on the

evidence. It was further held that if the enquiry has been properly held,

the question of adequacy or reliability of the evidence cannot be

canvassed before the High Court. In the facts and circumstances this

Court does not find any irrationality, illegality or procedural impropriety

in the reasoning of the Inquiry Officer.

26. This Court does not have any jurisdiction to go into the

correctness of the truth of the charges. It cannot take over the functions

of the disciplinary authority. It also cannot sit in appeal on the findings

of the disciplinary authority and assume the role of the appellate

authority. It cannot interfere with the findings of the fact arrived at in

the disciplinary proceedings except in the case of mala-fides or

perversity i.e where there is no evidence to support a finding or where

the finding is such that no one acting reasonably or with objectivity

could have arrived at or where a reasonable opportunity has not been

given to the delinquent to defend himself or it is a case where there has

been non application of mind on the part of the inquiry authority or if

the charges are vague or if the punishment imposed is shocking to the

conscience of the Court. The 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 and which 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 respondents have left out a relevant factor or

taken into account irrelevant factors. It was held in M.V. Bijlani v.

Union of India & Ors., (2006) 5 SCC 88, that the Judicial review is

of decision making process and not with re-appreciation of 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 B.C. Chaturvedi v. Union of India &

Ors., MANU/SC/0118/1996 : (1995) 6 SCC 749, 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."

In the circumstances, the learned counsel for the petitioner has

not made out any grounds to demonstrate that the inferences of the

Inquiry Officer are so outrageous so as to be in total defiance of logic or

reasoning. The inferences of the Inquiry Officer are also not patently

erroneous, nor do they suffer from any manifest error and in any case

this Court is not to sit in appeal over and re-appreciate the evidence,

already considered by the Inquiry Officer. Consequently, the plea of the

learned counsel for the petitioner that there is no evidence against the

petitioner is to be repelled. The petitioner has also failed to make out

any mala fides or bias against the Inquiry officer.

27. For the foregoing reasons, and in the facts and circumstances,

there are no grounds to interfere with the orders of the respondents, nor

is the petitioner entitled for any of the reliefs claimed by him. The writ

petition is without any merit, and therefore, it is dismissed. The parties

are however, left to bear their own costs.

ANIL KUMAR, J.

SUDERSHAN KUMAR MISRA, J.

March 16, 2012 vk