Govt Of Nct Of Delhi & Anr vs Virender Kumar
2015 Latest Caselaw 3718 Del

$~15
*    IN THE HIGH COURT OF DELHI AT NEW DELHI
                        Date of hearing and order: 07.05.2015

+     W.P.(C) 7012/2009
      GOVT OF NCT OF DELHI & ANR
                                                         ..... Petitioners
                         Through:   Ms.Avnish Ahlawat, Advocate

                         versus

      VIRENDER KUMAR
                                                         ..... Respondent
                         Through:   Mr. G.D. Bhandari, Advocate
    CORAM:
    HON'BLE MR. JUSTICE KAILASH GAMBHIR
    HON'BLE MR. JUSTICE I.S.MEHTA
                       ORDER

%                      07.05.2015
KAILASH GAMBHIR, J. (ORAL)

1. By this petition filed under Articles 226/227 of the Constitution of

India, petitioner seeks to challenge the order dated 01.10.2008 passed by

learned Central Administrative Tribunal, Principal Bench, New Delhi in

O.A. No. 1635/2007.

2. Addressing arguments, Ms. Avnish Ahlawat, Advocate submits that

the respondent was caught red handed with 200 pouches of tobacco in a

polythene bag beneath his driving seat while he was deployed on

ambulance van DBL 9925 and this was detected by one Mr. Raj Kumar,

Constable while the coach was in the process of unloading. Counsel also

submits that the Tribunal has arrived at a wrong finding by taking a view

that it was a case of no evidence whereas the petitioner got examined two

important witnesses i.e. one Mr. R.N. Meena and Mr. Ram Phal to prove

the articles of charges framed against the respondent. Counsel also submits

that the respondent himself had signed the seizure memo and therefore, he

could not dispute the recovery of the said pouches from him. Counsel also

submits that the presence of Raj Kumar was recorded in the very first

inquiry but later, he could not be produced because of the fact that the

Battalion of which he was a part had moved out to a far of place in the

South.

3. Rebutting the aforesaid contentions raised by the learned counsel for

the petitioner, Mr. G.D. Bhandari, Advocate appearing on behalf of the

respondent submits that the Tribunal has rightly held that it is a case of no

evidence as none of the material witnesses were examined by the petitioner

department. Counsel also submits that this was a third inquiry which was

held against the respondent and even in this inquiry, the petitioner failed to

adduce any evidence or any material witness to prove the articles of charge

framed against him. Counsel also submits that even the evidence produced

by the petitioner does not extend any support to the case of the petitioner

rather, their evidence lends support to the defence set up by the respondent.

In support of his arguments, Counsel for the respondent relies on the

judgment of the Apex Court in the case of Jasmer Singh vs. State of

Haryana and another reported in (2015) 4 SCC 458 and also on the

judgment of the learned Tribunal passed in the case of Dr. D.P.S. Luthra

vs. Union of India & Others, reported in (1988) 8 Administrative Tribunal

Cases 815 and

4. We have heard the submissions of the learned counsel for the parties

and have also perused the impugned order and the material on record. We

have also gone through the judgments cited by both the parties.

5. The respondent was a driver and on 25.9.1999, he was deployed on

ambulance van No. DBL 9925. He was ordered to transport 191 bread

packets from Jail No.2 to Jail No.4. When he reached the gate of the Jail

No.4, the TPS staff and Darban searched the vehicle and also the respondent

in person and after satisfying themselves, permitted the respondent to take

the vehicle inside Jail No.4. The bread packets were unloaded from the van

by the concerned staff and after unloading the breads when he was returning

back, he was stopped at the Gate and was detained by the duty staff on the

pretext that some tobacco had been recovered from his vehicle.

6. It is the case of the respondent that the duty staff had carried a

complete search of his person and the vehicle, and the report being clear,

the duty officer permitted the vehicle to be taken inside, and that neither

during the process of search, nor during unloading of the bread packets at

the fixed place inside the jail, did anyone recover anything objectionable

from the vehicle. Under orders of the Superintendent, jail no.4, his

statement was also obtained, wherein it was stated by him that he was duly

searched along with the vehicle prior to the grant of permission for taking

the vehicle inside jail no.4, where he got unloaded 191 bread packets. The

Superintendent after doing so and satisfying himself, allowed the respondent

herein to take away the vehicle for further duty. Seizure memo was

prepared, which was signed by Shri Mahavir Singh, Deputy

Superintendent/jail no.1, who conducted a preliminary enquiry recorded the

statements of concerned staff and submitted his report accordingly to higher

authorities. The statements recorded by him were, however, not supplied to

the respondent despite repeated requests made on his behalf. After one and

a half months of the incident, the petitioner placed the respondent under

suspension vide order dated 16.7.1999 retrospectively w.e.f. 1.6.1999.

Major penalty chargesheet dated 21.10.1999 was issued to the respondent

under rule 14 of the CCS (CCA) Rules, 1965. The charge against the

respondent was that while driving ambulance no. DBL 9925 on 29.9.1999

at about 2.40 p.m., in the advent of transporting bread packets to jail no.4 he

smuggled 200 packets of Nevla brand tobacco under driver's seat.

7. The respondent was dismissed from service by the order passed by the

Disciplinary Authority. We have also been informed that twice the inquiry

proceedings conducted against the respondent had been set aside and what

we are now examining is the order passed by the tribunal in third inquiry

proceedings. It is not in dispute between the parties that in the third inquiry,

the petitioner had examined only two witnesses to prove the articles of

charges against the respondent. The two witnesses are Mr. R.N. Meena and

Mr. Ram Phal. The learned Tribunal after having gone through the evidence

of the two witnesses and after perusing the records of the inquiry, came to

conclusion that the two witnesses examined by the department did not

connect the applicant to the recovery of tobacco at all. The learned Tribunal

further held that they were not the witnesses who may have recovered

tobacco underneath the driver seat in the van nor were they present at the

time when the recovery was made. To say that the material witness Mr.Raj

Kumar could not be produced in the inquiry proceedings on account of the

fact that the battalion of which he was a member was posted somewhere in

South is a plea which hardly satisfies the Court. The signing of the seizure

memo by the respondent is also of no consequence and the Tribunal rightly

observed that the seizure memo would not connect the respondent to the

recovery of tobacco as in the seizure memo it is only mentioned that the

same has been recovered beneath the driver seat of the ambulance van which

was driven by him for supplying bread for langar in Jail No.4.

8. We are also surprised to learn that when the respondent took the

vehicle carrying the said bread for unloading at Jail No.4, why the said

tobacco could not be traced when admittedly the vehicle was fully searched

by the staff. Thus the presence of the tobacco in the vehicle being driven by

the respondent beneath his driving seat after the unloading of the breads at

least proves the complicity of the other staff members who did not perform

their duties with due diligence at the time of their initial search of the

vehicle.

9. It is a settled legal position that when in an inquiry, the department

fails to prove the articles of charge with the help of the documentary

evidence or the witnesses, then certainly such a case will be a case of no

evidence. Findings recorded by the Inquiry Officer and the disciplinary

authority based on no evidence cannot be sustained. The learned Tribunal

has referred to the judgment of the Hon'ble Supreme Court in the case of

B.C. Chaturvedi vs. Union of India, reported in (1995) 6 SCC 749, where

the Supreme Court held that the conclusion or finding reached by the

disciplinary authority if based on no evidence or where the conclusion of

finding be such as no reasonable person would ever reach, 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. Relevant

para of the said judgment is reproduced as under:-

"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."

10. We may also refer to another judgment of the Hon'ble Apex Court

in the case of R.S. Saini v. State of Punjab and Ors. (1999)IILLJ1415SC

wherein in paragraphs 16 and 17 , it has been held that the scope of

interference is rather limited and has to be exercised within the

circumscribed limits. It was noted as follows:

"16. Before adverting to the first contention of the appellant regarding want of material to establish the charge, and of non-application of mind, we will have to bear in mind the rule that the court while exercising writ jurisdiction will not reverse a finding of the inquiring authority on the ground that the evidence adduced before it is insufficient. If there is some evidence to reasonably support the conclusion of the inquiring authority, it is not the function of the court to review the evidence and to arrive at its own independent finding. The inquiring authority is the sole judge of the fact so long as there is some legal evidence to substantiate the finding and the adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the court in writ proceedings.

17. A narration of the charges and the reasons of the inquiring authority for accepting the charges, as seen from the records, shows that the inquiring has based its conclusions on materials available on record after considering the defence put forth by the appellant and these decisions in our opinion, have been taken in a reasonable manner and objectively. The conclusion arrived at by the inquiring authority cannot be termed as either being perverse or not based on any material nor is it a case where there has been any non-application of mind on the part of the inquiring authority. Likewise the High Court has looked into the material based on which the enquiry officer has come to the conclusion. within the limited scope available to it under Article 226 of the Constitution and we do not find any fault with the findings of the High Court in this regard."

11. In the light of the aforesaid discussion, we hardly find any tangible

reason to disagree with the reasoning of the learned Tribunal in allowing the

Original Application preferred by the respondent. Accordingly, we uphold

the order passed by learned Tribunal and dismiss the present writ petition

preferred by the petitioner.

12. It is ordered accordingly.

KAILASH GAMBHIR, J

I.S. MEHTA, J MAY 07, 2015 pkb