The State Of Jharkhand vs Sanjay Kumar Yadav
2021 Latest Caselaw 232 Jhar

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 IN THE HIGH COURT OF JHARKHAND AT RANCHI
                   L.P.A. No.869 of 2019
                             With
                      I.A.No.11903 of 2019
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1. The State of Jharkhand

2. The Director General of Police, P.O., P.S.-Dhurwa, District-Ranchi, Jharkhand Ranchi

3. The Deputy Inspector General of Police, P.O.-Badi Bazar, P.S.- Chaibasa, District-West Mufassil Singhbhum, Chaibasa, Kolhan Range, Chaibasa

4. The Superintendent of Police, P.O.-Main post office Sadar Bazar, P.S.-Sadar, District-West Singhbhum, Chaibasa

5. The Superintendent of Police, P.O., P.S. and District-Seraikela, Kharsawan, Seraikela Kharsawan .... .... Appellants Versus Sanjay Kumar Yadav, S/o Shri Suresh Yadav, residing at Police line, Seraikela-Kharsawan, P.O. P.S. and District-Seraikela-Kharsawan ...... ..... Respondent CORAM : HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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 For the Appellants         : Mrs. Vandana Singh, Sr. S.C.-III
                            : Mr. Ashwini Bhushan, A.C. to Sr. S.C.-III
 For the Respondent         : Mr. Saurav Arun, Advocate
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  ORAL JUDGMENT
 05/Dated: 18.01.2021

The matter has been heard with the consent of learned counsel for

the parties through video conferencing. There is no complaint about any

audio and visual quality.

I.A.No.11903 of 2019

The instant interlocutory application has been filed for condoning

the delay of 102 days taking the ground of department to take a decision

to prefer appeal, for which, an opinion has been taken in the matter, some

conferences took place with the concerned law officer and instructions

were given to procure all the related documents and pleadings so as to

prepare a proper memo of appeal. Thereafter, the said procedure took

time after settlement of decision by the discussion with the law officer, the

file has been handed over to the filing counsel for the purpose of

preparing the final draft memo.

Thereafter, the appeal has been filed which caused the delay of 102

days.

It has been submitted by the learned counsel appearing for the

appellant-State that the instant interlocutory application may be allowed

since the appellant has got good case on merit and on technicality, the

instant appeal would be dismissed, the same will prejudice the appellant.

On the other hand, Mr. Saurav Arun, learned counsel appearing for

the respondent-writ petitioner has opposed the delay condonation

application by putting reliance upon the certain judgments rendered by the

Hon'ble Apex Court in the cases of Cicily Kallarackal Vrs. Vehicle

Factory, (2012) 8 SCC 524, Post Master General and Ors. Vrs. Living

Media India Ltd. and Anr., (2012) 3 SCC 563, Union of India and Ors.

Vrs. Nripen Sarma, (2013) 4 SCC 57, Vijay Shankar Pandey Vrs. Union

of India and Anr., (2014) 10 SCC 589.

We have heard the learned counsel for the parties and on

appreciation of the rival submissions, first deem it fit and proper to deal

with the judgments, upon which, reliance has been placed by the learned

counsel appearing for the respondent-writ petitioner.

So far as the judgment rendered by the Hon'ble Apex Court in the

case of Cicily Kallarackal Vrs. Vehicle Factory(supra) which pertains to

filing of appeal against the order passed by the National Consumer

Disputes Redressal Forum under Section 27A(1)(c) and in that pretext, it

has been laid down that in filing the appeal, the limitation period provided

under the Consumer Protection Act, 1986, is required to be followed but

the fact of this case pertains to intra-court appeal to be governed, wherein,

the period of limitation is to be considered under the Limitation Act, 1963

and as such, on fact, the judgment rendered in the aforesaid case is

distinct from the fact of the present case.

So far as the judgment rendered in the case of Post Master

General and Ors. Vrs. Living Media India Ltd. and Anr.(supra), we, on

consideration of the factual aspect involved therein has found therefrom

that therein the delay in filing the appeal was of 427 days.

It is evident from the factual aspect that the Hon'ble Apex Court on

the basis of contradiction in the fact has not found to condone the delay of

427 days but the said fact is not available in the facts of the present case

as would appear from the ground taken for condonation of delay in the

interlocutory application, hence, this judgment is not applicable in the facts

of this case.

So far as the case of Union of India and Ors. Vrs. Nripen

Sarma(supra), there was delay of 239 days in filing the appeal. Herein,

the delay of 102 days.

It further requires to refer herein the other proposition laid down by

the Hon'ble Apex Court in State of Haryana Vrs. Chandra Mani and

Ors., (1996) 3 SCC 132, wherein, it has been laid down to the effect that

while condoning the delay of 109 days in filing the LPA before the High

Court, this Court has observed that certain amount of latitude within the

reasonable limits is permissible having regard impersonal bureaucratic set

up involving red tapism.

In State of U.P. and Ors. Vrs. Harish Chandra and Ors., (1996) 9

SCC 309, by giving similar reasons, as mentioned in Chandra Mani's case

(supra), the Hon'ble Apex Court, condoned the delay of 480 days in filing

the SLP.

In National Insurance Company Ltd. Vrs. Giga Ram and Ors.,

(2002) 10 SCC 176, the Hon'ble Apex Court after finding that the High

Court was not justified in taking too technical view of the facts and refusing

to condone the delay, accepted the case of the appellant-Insurance

Company by protecting the interest of the claimant and condoned the

delay.

In State of Nagaland Vrs. Lipok Ao and Ors., (2005) 3 SCC 752,

the Hon'ble Apex Court while reiterating the principle that latitude be given

to the government litigation, allowed the appeal filed by the State of

Nagaland.

This Court after considering the aforesaid position of law, is of the

view that it would not be proper to throw out the instant appeal on the

ground of limitation rather it would be in the ends of justice to consider the

case on merit, so that, there will be no prejudice to the party.

Accordingly, we thought it proper to condone the delay of 102 days

in filing the instant appeal.

In the result, I.A.No.11903 of 2019 is allowed and delay of 102 days

in preferring the appeal is condoned.

L.P.A. No.869 of 2019

The instant intra-court appeal is directed against the order/judgment

dated 30.07.2019 passed by the learned Single Judge of this Court in

W.P.(S) No.3503 of 2008, whereby and whereunder, the departmental

proceeding dated 05.04.2003 and the consequential order dated

04.06.2008, the enquiry report dated 28.06.2012, punishment order dated

24.10.2012, appellate order dated 28.07.2013 have been quashed and set

aside.

2. The brief facts of the case required to be referred herein read as

hereunder:-

The writ petitioner was proceeded departmentally by issuance of

memo of charge vide memo no.139 dated 08.03.003. It is alleged in

charge that the writ petitioner provoked various constables not to do their

job and duty as the strike called by the Jharkhand Police Men's

Association. One of the officers informed the Superintendent of Police,

Seraikella-Kharsawan that the writ petitioner and other fours persons have

violated the order passed by the higher authority. The writ petitioner was

put under suspension on 21.03.2003. The Superintendent of Police,

Seraikella-Kharsawan informed the Deputy Inspector General of Police on

28.03.2003 that the writ petitioner was still participating in the strike

making allegation against the Superintendent of Police even after his

suspension on 21.03.2003, as such, the another charge was framed on

05.04.2003 by the Deputy Inspector General of Police who is the appellate

authority of the Constable.

It has been agitated before the learned Single Judge by referring to

the charge dated 05.04.2003 along with charge dated 08.03.2003 which

according to the writ petitioner is more or less same and similar in nature

and the period is also same.

It has been contended that since on the basis of the charge dated

08.03.2003, the departmental proceeding was concluded and the

Superintendent of Police, Seraikella-Kharsawan dismissed the writ

petitioner from service on 07.10.2003 but finally the order of dismissal has

been set aside in an order passed in the memorial by the Inspector

General of Police dated 18.06.2005, in pursuant thereto, the writ petitioner

was reinstated in service. But against the proceeding in pursuant to the

memorandum of charge dated 05.04.2003, has been revived, in which the

disciplinary authority has passed the order dismissing the writ petitioner

which has been affirmed by the appellate authority also vide order dated

28.07.2013.

According to the writ petitioner, since on the same and similar

charges, the writ petitioner has already been directed to be reinstated in

service, the revival of the second departmental proceeding cannot be said

to be proper and justified.

3. Taking into consideration the fact that on the same and similar

charges the writ petitioner has already been reinstated in service, as such,

there is no requirement to revive the memorandum of charge dated

05.04.2003 and further since the other Constables have already been

reinstated in service, therefore, the learned Single judge has rightly

passed the order for quashing and setting aside the impugned orders

dated 24.10.2012 and 28.07.2013 as contained in Annexure-19 and 21

respectively to the writ petition.

Assailing the same, the instant intra-court appeal has been filed.

4. Mrs. Vandana Singh, learned Sr. S.C.-III appearing for the

appellant-State has submitted that both the charges dated 05.04.2003 and

08.03.2003 levelled against the writ petitioner are quite different and as

such, finding recorded by the learned Single Judge considering both the

charges for the same and similar allegation cannot be said to be correct.

She further submits that the competent authority has taken decision

for keeping the departmental proceeding pertaining to memorandum of

charge dated 05.04.2003 in abeyance to be revived after reinstatement of

the writ petitioner in service which order has never been challenged by the

writ petitioner and therefore, once the writ petitioner has been reinstated in

service, the authority in pursuant to the order passed in this regard with

respect to the charge dated 05.04.2003 has rightly revived the

departmental proceeding and concluded by dismissing the writ petitioner

from service.

It has further been submitted that when two departmental

proceedings have been initiated by virtue of two memorandum of charges

even in one charge, if in the departmental proceeding the delinquent

employee is dismissed from service, but in case of order of reinstatement

the other departmental proceeding which is pending, can well be revived

for the purpose of reaching to the logical end and taking into consideration

the aforesaid position of law, the departmental proceeding which has been

kept in abeyance on the ground of dismissal of the writ petition by virtue of

memorandum of charge dated 05.04.2003 has rightly been revived and

the order of punishment has rightly been passed on the same but the said

aspect has not been considered by the learned Single Judge.

The learned Single Judge has also not considered the fact about

the difference in both the charges and without making comparison in

between the two charges, the conclusion has been arrived at that since in

one charge, the writ petitioner has already been reinstated in service after

the order of dismissal having been quashed by the authority having power

of memorial on the same set of allegation, there cannot be an order of

dismissal from service.

In that view of the matter, the order passed by the learned Single

Judge is not sustainable in the eye of law.

5. We have heard the learned counsel for the parties, perused the

material available on record as also the finding recorded by the learned

Single Judge.

6. The admitted fact of this case is required to be referred herein

before assessing the legality and propriety of the impugned order which

reads as hereunder:-

The writ petitioner was proceeded departmentally by issuance of

memorandum of charge as contained in memo no.139 dated 08.03.2003,

framed against him by the Superintendent of Police, Seraikella-

Kharsawan. It has been alleged therein that the writ petitioner in the

capacity of Secretary, Jharkhand Police Men's Association at Seraikella-

Kharsawan provoked various Constables not to do their job and duty as

there was strike called by the Jharkhand Police Men's Association. The

writ petitioner and other four persons have violated the order passed by

the higher Police Official by not discharging their duties and as such, the

writ petitioner was put under suspension vide order dated 21.03.2003.

A regular departmental proceeding was initiated by issuance of

memorandum of charge dated 08.03.2003. Subsequent thereto, another

charge issued against the writ petitioner dated 05.04.2003 by the Deputy

Inspector General of Police, South Chhotanagpur Range Ranchi.

The departmental proceeding pertaining to memorandum of charge

dated 08.03.2003 has proceeded and concluded by finding the charge

proved and after its acceptance, the writ petitioner was dismissed from

service.

He, however, has been reinstated in service by the order passed by

the authority empower to deal with the memorial.

The authorities have passed an order on 20.02.2003 as has been

annexed as annexure-26 to the memo of appeal that after initiation of

departmental proceeding pertaining to charge dated 08.03.2003, the

departmental proceeding pertaining to charge dated 05.04.2003 is kept in

abeyance, however with the stipulation made therein that if the delinquent

employee will be reinstated in service, the said departmental proceeding

will be revived, in pursuant thereto, the departmental proceeding has been

revived finally the same culminated in the order of dismissal from service

which has been affirmed by the appellate authority.

Both the orders have been assailed before the writ Court by filing

the writ petition under Article 226 of the Constitution of India by taking the

plea that allegation in both the charges dated 08.03.2003 and 05.04.2003

since almost similar and once the writ petitioner in pursuant to the

departmental proceeding pertaining to charge dated 08.03.2003 has been

reinstated in service on the same and similar allegation, the subsequent

order of punishment of dismissal is not tenable in the eye of law.

The learned Single Judge has accepted the aforesaid submission

and allowed the writ petition by quashing and setting aside the impugned

orders dated 24.10.2012 and 28.07.2013 which is for consideration under

the instant intra-court appeal.

7. We, in order to reach to the rightful conclusion about the legality and

propriety of the impugned order, first deem it fit and proper to consider the

memorandum of charge pertaining to departmental proceeding on

08.03.2003, for ready reference, the said memorandum of charge is being

reflected hereinbelow:-

The charge dated 05.04.2003 which has been appended as

annexure-5 is being referred hereinbelow for ready reference:-

From bare comparison of allegations levelled in both the charges, it

would be evident that the charges levelled as under annexure-1 as quoted

hereinabove is totally different to that of charge pertaining to

memorandum of charge dated 05.04.2003 as because in the memo of

charge dated 08.03.2003, the writ petitioner has gone for mass strike from

the night of 22.02.2003 and with the connivance of other co-employee has

provoked the other Police Constables not to discharge their duties as also

provoked them to revolved. Even such Constables who are not willing to

cooperate have been compelled to follow the instruction.

Further, about 50 to 60 co-police employees have taken possession

on the baramda of the office of the Superintendent of Police and raised

the slogan against the Inspector General of Police and the government as

also not allowing the bodyguard of the District and Sessions Judge to

discharge his duty.

Further, even the movement of one Minister namely Shri Ajit Munda

has been interrupted. Further, 20 home-guards have been threatened.

It has further been alleged that two bodyguards on the duty of the

Deputy Commissioner have been threatened from taking out their uniform

and forcefully got their signatures to go for mass strike, while on the other

hand, the memorandum of charge dated 05.04.2003 (annexure-5) speaks

about an allegation occurred on 05.04.2003 that when the members of the

Police Men's Association assigned duty in the jail situated at Saraikella-

Kharasawan have denied to discharge their duties and misbehaved with

the higher officials.

Therefore, both the charges cannot be said to be same and similar.

It is also admitted fact that since departmental proceeding pertaining

to memorandum of charge dated 08.03.2003 has culminated into order of

punishment, therefore, departmental proceeding pertaining to

memorandum of charge dated 05.04.2003 has been kept in abeyance

with a stipulation made therein that if the writ petitioner would be

reinstated in service, the said departmental proceeding will be revived,

pursuant thereto, the departmental proceeding has been revived.

It requires to refer that decision of revival of the departmental

proceeding pertaining to memorandum of charge dated 05.04.2003 has

never been questioned by the writ petitioner.

The issue for revival of the departmental proceeding fell for

consideration before the Hon'ble Apex Court in the case of State of

Maharashtra Vrs. Vijay Kumar Aggarwal and Anr., (2014) 13 SCC 198,

wherein, it has been held at paragraph-11 that in case of dismissal of

order having been set aside and the concerned employee will be

reinstated in service as a result thereof, the relationship of the employer

and employee between the parties will stand restored. In that eventuality,

it would be permissible for the appellant to proceed with the inquiry

relating to departmental proceeding which has been kept in abeyance, for

ready reference, paragraph-11 is being referred herein which reads as

hereunder:-

"11. It is clear from the above that only on the ground that Respondent 1 has already been dismissed from service in another separate inquiry, the High Court has held that insofar as charge-sheet dated 6-7-1988 is concerned,

inquiry cannot continue. We are of the opinion that the High Court is only partially correct in its approach. No doubt, so long as Respondent 1 is facing penalty of dismissal, no question arises to continue the inquiry into the charges levelled vide charge-sheet dated 6-7-1988. It is because of the reason that with the dismissal of Respondent 1 from service, as of now Respondent 1 has ceased to be the employee of the appellant. Moreover, the employee who has already been dismissed from service cannot be imposed any other penalty on the conclusion of inquiry pertaining to the charge-sheet dated 6-7-1988. Therefore, at this stage no purpose is going to be served to continue with the inquiry into the said charge-sheet. At the same time, it is also to be borne in mind that Respondent 1 has challenged dismissal order and the matter is pending before the Tribunal. In case the said dismissal is set aside by the Tribunal and/or the High Court/this Court and Respondent 1 is reinstated in service as a result thereof, the relationship of employer-employee between the parties shall also stand restored. In that eventuality, it would be permissible for the appellant to proceed with the inquiry relating to charge- sheet dated 6-7-1988 as well. Therefore, normally such a direction of the High Court to the effect that "proceedings have to terminate" insofar as charge-sheet dated 6-7-1988 is concerned would not be correct. Instead of terminating these proceedings appropriate order as that should normally be passed is to keep in 'abeyance'. That is the course of action which is permissible under the extant Rules as well as in such circumstances."

8. Therefore, according to our considered view, there is no embargo in

revival of the departmental proceeding as has been revived and

furthermore, the decision of the revival of the departmental proceeding

dated 05.04.2003 has never been questioned by the writ petitioner.

9. Finding recorded by the learned Single Judge that the allegation

levelled in both the charges are almost same and similar in nature,

therefore, the order of punishment passed on the basis of memorandum

of charge dated 05.04.2003 has been held to be not sustainable in the eye

of law.

10. According to our considered view, the learned Single Judge has

failed to appreciate the fact that the departmental proceeding if initiated

exactly on the same and similar charges, the finding recorded by the

learned Single Judge would be said to be a correct proposition of law but

such finding could not have come in case of nature of charges if found to

be almost same and similar rather it should be exactly same and similar

and not almost same and similar.

Here, it is evident from the perusal of both the charges which are

different to each other and occurred on two different dates i.e. charge

dated 08.03.2003 pertains to allegation initiated in the night of 22.02.2003

while the allegation of another charge dated 05.04.2003 speaks about the

occurrence of 05.04.2003, hence, both the charges cannot be said to be

same and similar.

Further, it would be evident from the comparative assessment of

the charge levelled against the writ petitioner in both the memorandum of

charges, it would be found that the charges levelled against the writ

petitioner is quite different to each other as would appear from the finding

recorded in the impugned order, has not considered the allegation levelled

against the writ petitioner since nothing has been referred in this regard.

11. It is the settled position of law that if two departmental proceedings

have been initiated on different allegation and if in one allegation the order

of punishment has been passed for dismissal from service and on revival

of the delinquent employee in service by virtue of order of reinstatement

by the competent authority by the Court of law, the pending departmental

proceeding can be revived and thus by following the said position of law,

the pending departmental proceeding has been revived which ultimately

culminated into the order of punishment of dismissal from service.

In the instant case, the sole plea agitated before the learned Single

Judge about the similarity in both the allegations which has been accepted

by the learned Single Judge and coming to the fact that other Constables

have been reinstated in service leaving apart the writ petitioner, has

passed the impugned order.

The question before coming to such conclusion which was to be

considered by the learned Single Judge by taking into consideration the

charges if levelled against the other Constables but as would appear from

the finding recorded by the learned Single Judge, no such factual aspect

has been pleaded by the parties, as to whether any charges have been

levelled against the other Constables or not and if yes, then what were its

consequences?

It is not in dispute that in the departmental proceeding the parity of

punishment is also one of the point to be considered by the High Court

under the power of judicial review, if such plea would be taken along with

the charges, if levelled, against any delinquent employee and in absence

thereof, if any finding has been recorded, the same cannot be said to be

proper.

It is the settled position of law that the power of judicial review under

Article 226 of the Constitution of India to enter into the fact finding is very

least, however, it would be evident from the impugned order that no such

plea has been taken by the parties for showing interference with the

impugned orders on perversity of the finding recorded by the enquiry

officer but we have also travelled to that aspect of the matter by taking into

consideration the finding recorded by the enquiry officer vis-à-vis the order

passed by the disciplinary authority.

It requires to refer herein that the power of judicial review under

Article 226 of the Constitution of India to enter into the fact finding by the

enquiry officer is least to be interfered with as has been held in case of

Union of India Vs. P. Gunasekaran as reported in AIR 2015 SC 545

wherein at paragraph 13, the following guidelines has been laid down for

showing interference in the decision taken by the disciplinary authority and

not to interfere with the decision, which reads hereunder as:

"13. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge No. 1 was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether: a. the enquiry is held by a competent authority;

b. the enquiry is held according to the procedure prescribed in that behalf;

c. there is violation of the principles of natural justice in conducting the proceedings;

d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;

h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

i. the finding of fact is based on no evidence.

Under Article 226/227 of the Constitution of India, the High Court shall not:

(i). re-appreciate the evidence;

(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;

(iii). go into the adequacy of the evidence;

(iv). go into the reliability of the evidence;

(v). interfere, if there be some legal evidence on which findings can be based.

(vi). correct the error of fact however grave it may appear to be;

(vii). go into the proportionality of punishment unless it shocks its conscience."

The Hon'ble Apex Court in the case of Management of State Bank of

India vs. Smita Sharad Deshmukh and Anr. reported in (2017) 4 SCC

75, has laid down therein that it is equally settled position of law that the

High Court sitting under Article 226 of the Constitution of India can

certainly interfere with the quantum of punishment, if it is found

disproportionate to the gravity of offence.

The Hon'ble Apex Court in the case of Central Industrial Security

Force and Ors. vs. Abrar Ali reported in AIR (2017) SC 200, has laid

down the guidelines at paragraph 8 showing interference by the High

Court in the matter of punishment imposed on conclusion of the

departmental proceeding, which is being quoted herein below:

"8.Contrary to findings of the Disciplinary Authority, the High Court accepted the version of the Respondent that he fell ill and was being treated by a local doctor without assigning any reasons. It was held by the Disciplinary Authority that the Unit had better medical facilities which could have been availed by the Respondent if he was really suffering from illness. It was further held that the delinquent did not produce any evidence of treatment by a local doctor. The High Court should not have entered into the arena of facts which tantamounts to re- appreciation of evidence. It is settled law that re-appreciation of evidence is not permissible in the exercise of jurisdiction under Article 226 of the Constitution of India. In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaiya, reported in (2011) 4 SCC 584 : (AIR 2011 SC 1931, Para 6), this Court held as follows: "7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic inquiry, nor interfere on the ground that another view is possible on the material on record. If the inquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations.

In Union of India and Ors. v. P. Gunasekaran, reported in (2015) 2 SCC 610 this Court held as follows:

"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the inquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:

(a) the inquiry is held by a competent authority;

(b) the inquiry is held according to the procedure prescribed in that behalf;

(c) there is violation of the principles of natural justice in conducting the proceedings;

(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;

(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;

(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; 13.(i) the finding of fact is based on no evidence.

13. Under Article 226/227 of the Constitution of India, the High Court shall not:

(i) re-appreciate the evidence;

(ii) interfere with the conclusions in the inquiry, in case the same has been conducted in accordance with law;

(iii) go into the adequacy of the evidence;

(iv) go into the reliability of the evidence;

(v) interfere, if there be some legal evidence on which findings can be based.

(vi) correct the error of fact however grave it may appear to be;

(vii) go into the proportionality of punishment unless it shocks its conscience."

12. In view of the aforesaid settled position of law since herein the

charge has been found to be proved which has been accepted by the

disciplinary authority by passing the order of punishment having been

affirmed by the appellate authority also. No such ground has been made

out for making interference with the said impugned order, so far as the

finding recorded by the enquiry officer is concerned.

13. It cannot be forgotten that the member of the discipline force is

required to perform his duty with utmost sincerity but as would appear

from the nature of allegation not only flouted the order passed by the

higher authority rather denied to discharge his official duty which cannot

be accepted from the member of the discipline force.

14. Learned counsel appearing for the writ petitioner has, however,

agitated the ground about the similarity in the charge but as would appear

from the finding recorded by the enquiry officer, no such ground has been

agitated before it, even not agitated before the disciplinary authority or the

appellate authority and for the first time, such ground has been agitated

before the writ Court which should not have been accepted by the learned

Single Judge as because the departmental proceeding if initiated in a

proceeding, the charge is required to be examined by the enquiry officer,

wherein the opportunity is to be availed to raise all the points.

Herein the opportunities have been provided to the writ petitioner

which he has availed by participating before the enquiry officer but such

plea has been agitated about the similarity in the memo of charges dated

08.03.2003 and 05.04.2003.

Further, point has been agitated that the memorandum of charge

dated 05.04.2003 has been initiated by the Deputy Inspector General of

Police who is the appellate authority and as such, the appellate authority

is having no jurisdiction but this aspect of the matter is not fit to be

considered at this stage since the writ petitioner has submitted to the

jurisdiction of the disciplinary authority by filing response to the

memorandum of charge, participated before the enquiry officer and

thereafter, has not filed appeal before the appellate authority rather he has

chosen to file memorial without raising this aspect of the matter, under

what capacity, the Deputy Inspector General of Police, even though, he

being the appellate authority, has issued the memorandum of charge,

therefore, at this stage, this point cannot be allowed to be agitated by the

writ petitioner.

15. This Court in the entirety of the facts and circumstances of the case

as discussed hereinabove is of the view that the order passed by the

learned Single Judge requires interference by this Court and accordingly,

the order dated 30.07.2019 is quashed and set aside.

16. In the result, the instant intra-court appeal stands allowed.

17. Accordingly, W.P.(S) No.3503 of 2008 stands dismissed.

18. In consequent to disposal of this appeal, I.A.No.11904 of 2019 also

stands disposed of.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Rohit/-

.A.F.R.