(An Application Under Article 226 ... vs Union Of India
2021 Latest Caselaw 997 Jhar

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    IN THE HIGH COURT OF JHARKHAND AT RANCHI
                  W.P.(S) No. 3563 of 2009
                 (An application under Article 226 of the Constitution of India)
        Dev Dutt Rai                                          ..... Petitioner
                                  Versus
       1.    Union of India, through the Director General of Central
             Industrial Security Force at New Delhi.
       2.    The Inspector General Central Industrial Security Force,
             CISF, Eastern Sector, Patliputra Boring Road, Patna-13.
       3.    The Deputy Inspector General, Central Industrial Security
             Force, Bokaro Steel Plant, Bokaro Ispat Nagar.
       4.    The Commandant, Central Industrial Security Force,
             Bokaro Steel Plant, Bokaro Ispat Nagar-01.
                                                   .....  Respondents
                                       ---------

For the Petitioner : Mr. K.K.Ojha, Advocate For the Respondent : Mr. Pratyush Kumar, Advocate PRESENT

HON'BLE MR. JUSTICE DEEPAK ROSHAN

---------

By Court: Heard learned counsel for the parties through V.C.

2. The instant writ application has been preferred by

the petitioner praying therein for quashing the order of

punishment as contained in letter no. B-15014 dated

28.11.2004 passed by respondent No.4, whereby the

petitioner has been imposed punishment of reduction of

pay by one stage from 4500-4400/- in his pay scale of Rs.

4000-100-6000/- for a period of one year with further

direction that he will not earn increment during the period

of reduction and it will have effect of postponing his future

increment. The petitioner has further challenged the

appellate order dated 24.02.2005 passed by respondent

no.3 and also the order under revision; whereby both the

authorities has sustained the order of punishment.

3. The brief fact as disclosed in the instant writ

application is that when the petitioner was posted as Head

Constable in CISF Unit at Bokaro Steel City; on

06.06.2004, he was on petrolling duty and at about 7 AM

the parties of the Crime Branch found that about 15 to 20

persons were stealing Iron Scraps. On the basis of the said

incident, a departmental proceeding was initiated and the

petitioner has been imposed punishment by the

disciplinary authority.

4. Mr. K.K.Ojha, learned counsel for the petitioner tries

to impress this Court by submitting that principle of

natural justice has been violated in the instant case,

inasmuch as, in preliminary enquiry three witnesses

deposed that the occurrence took place on 05.06.2004,

however, they have changed their stand in the enquiry

proceeding by submitting that the occurrence took place on

06.06.2004 so there is a vital difference of date and this

aspect of the matter has not been considered.

5. Learned counsel further contended that he has

demanded various documents to examine and also to cross-

examine the witnesses, however the same was not accorded

to him. It is a major punishment and it has also come on

record that no persons were seen at the place of occurrence

from where iron scraps were removed. In this view of the

matter the order of punishment is non-est in the eye of law

as the same has been passed dehors the evidence placed

before the Inquiry Officer and thus, it is prejudice the

petitioner. Even the appellate authority as well as the

revisional authority did not bothered to care for the

grounds taken in appeal/revision and the order imposing

punishment has been sustained by both the superior

authorities.

6. In support of his contention with regard to principle

of natural justice Mr. Ojha cited a judgment passed by the

Hon'ble Apex Court passed in the Case Union of India &

Ors. Vs. Prakash Kumar Tandon reported in (2009) 2

SCC 541, wherein at para 15 and 16 the Hon'ble Apex

Court has held as under:

"15. The principles of natural justice demand that an application for summoning a witness by the delinquent officer should be considered by the enquiry officer. It was obligatory on the part of the enquiry officer to pass an order in the said application. He could not refuse to consider the same. It is not for the Railway Administration to contend that it is for them to consider as to whether any witness should be examined by it or not. It was for the enquiry officer to take a decision thereupon. A disciplinary proceeding must be fairly conducted. An enquiry officer is a quasi-judicial authority. He, therefore, must perform his functions fairly and reasonably which is even otherwise the requirement of the principles of natural justice.

16. In M.V. Bijlani v. Union of India this Court has held:

"25. ... 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 analysing 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."

He further cited a decision rendered in the case of

Roop Singh Negi Vs. Punjab National Bank & Ors.,

reported in (2009) 2 SCC 570 wherein the Hon'ble Apex

Court has held that the Inquiry Officer is a quasi judicial

authority. Relevant paragraphs 18 and 23 are quoted

herein below:

"18. In Narinder Mohan Arya v. United India Insurance Co. Ltd. where upon both the learned counsel relied, this Court held:

"26. In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angles. Despite limited jurisdiction a civil court, it was entitled to interfere in a case where the report of the enquiry officer is based on no evidence. In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the

findings arrived at in the departmental proceedings are questioned before it, it should keep in mind the following: (1) the enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry. (See State of Assam v. Mahendra Kumar Das.) (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice. (See Khem Chand v. Union of India and State of U.P. v. Om Prakash Gupta.) (3) Exercise of discretionary power involves two elements--(i) objective, and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. (See K.L. Tripathi v. SBI.) (4) It is not possible to lay down any rigid rules of the principles of natural justice which depend on the facts and circumstances of each case but the concept of fair play in action is the basis. (See Sawai Singh v. State of Rajasthan.) (5) The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject-matter of the charges is wholly illegal. (See Export Inspection Council of India v. Kalyan Kumar Mitra.) (6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. (See Central Bank of India Ltd. v. Prakash Chand Jain and Kuldeep Singh v. Commr. of Police.)"

23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the criminal court on the basis of selfsame evidence should

not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the enquiry officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the enquiry officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof."

7. Mr. Pratyush Kumar, learned counsel for the

respondent-CISF submits that no principle of natural

justice has been flouted in this case rather every

opportunity was afforded to the petitioner to cross-examine

the witnesses. He further submits that it is true that in the

preliminary enquiry few witnesses deposed the time of

occurrence to be 05.06.2004, however, in the departmental

proceeding enquiry; all the witnesses have stated that the

date of occurrence was on 06.06.2004. The petitioner was

having ample opportunity to cross-examine the witnesses,

however, the petitioner has only put defense witness and

did not choose to cross-examine the prosecution witnesses

who said the date of occurrence to be 06.06.2004. Even

otherwise, each and every aspect of the matter was taken

care by the disciplinary authority as well as the superior

authorities, as such; the instant writ application deserves

to be dismissed.

He lastly submitted that the judgment referred by the

Petitioner's counsel is not applicable in the instant case in

view of the fact that in this case principles of natural justice

has been duly followed

8. Having heard learned counsel for the parties and

after going through the documents annexed and the

averments made in the respective affidavits, it appears that

nowhere in the enquiry proceedings the petitioner has

demanded any document. It is true that couple of witnesses

have said that the date of occurrence in preliminary enquiry

as 05.06.2004; however, before the Inquiry Officer during

departmental proceedings all witnesses have categorically

stated that the date of occurrence as 06.06.2004.

Further, from the enquiry report it appears that the

petitioner did not choose to cross-examine those witnesses

who have initially said the date of occurrence to be on

05.06.2004. At no point of time in the enquiry proceeding

the petitioner has demanded for any document or asked to

cross-examine the prosecution witness. Further, in the

instant writ application the petitioner has not annexed any

chit of paper showing that he has demanded for cross-

examination and the same has been denied to him and/or

he has asked for any document and same has not been

handed over to him.

At the cost of repetition, this date is an important

date, inasmuch as, on 06.06.2004 the petitioner was on

duty. It is not a case of this petitioner that he was not on

duty on 06.06.2004. His main argument is that some of the

witnesses in the preliminary enquiry have said the date of

occurrence as 05.05.2004 and nobody has seen the thieves

and there is no report of theft. He mainly harped that

principles of Natural Justice have not been followed.

9. After going through the enquiry report it clearly

transpires that the petitioner has not been denied

principles of natural justice. As such, the judgments cited

by learned counsel for the petitioner is not applicable in

this case.

The law is well settled that this court cannot re-

appreciate evidence under writ jurisdiction. Further, in the

instant case principles of natural justice has been duly

followed and there is no procedural irregularity or

perversity in the finding. The petitioner has failed to bring

on record any piece of document to demonstrate that

principles of natural justice have been denied. All the

orders assailed before this Court has been examined and it

is found that the same are well reasoned and speaking

orders.

10. In the case of Union of India & Ors. Vs P.

Gunasekaran reported in (2015) 2 SCC 610 the Hon'ble

Apex Court has laid down the law that under what

circumstances there can be any interference with the order

passed by the disciplinary authority. Para 12 and 13 is

quoted hereunder:

"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, reappreciating even the evidence before the enquiry 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 Articles 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.

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

(i) reappreciate 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."

11. In view of the aforesaid discussions and judicial

pronouncement, I do not want to interfere with the

impugned orders; as such the instant writ application is

dismissed being devoid of merit.

12. It has been informed by learned counsel for the

petitioner that petitioner has not received retiral benefits. It

transpires from the writ petition that no prayer for retiral

benefits has been made by this petitioner. However, the

petitioner is at liberty to move before the appropriate forum

for redressal of his grievance and the same shall be

considered.

(Deepak Roshan, J.) Jharkhand High Court, Ranchi Dated 1st March, 2021 Amardeep/A.F.R