Devduttrai vs Union Of India
2021 Latest Caselaw 3766 Jhar

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IN THE HIGH COURT OF JHARKHAND AT RANCHI
               L.P.A. No. 226 of 2021
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DevDuttRai, aged about 70 years, Son of Late Yamuna Rai, resident of village Barkadia, P.O. Barkadia, P.S. Krishan Braham, District Buxar (Bihar) at present residing at Area No. 8, Pustaur Area BCCL, CISF, Camp Singh Nagar, KhasJharia Officer Colony, P.O and P.S. Jharia, District Dhanbad.

....Petitioner/Appellant Versus

1.Union of India, through the Director General of Central Industrial Security Force at New Delhi, Block 13 CGO Complex, Lodhi Road, P.O. Head Post Office, Lodhi Road, P.S. Lodhi Colony, District New Delhi- 110003, New Delhi.

2.The Inspector General, Industrial Security Force, C.I.S.F., Eastern Sector, Patliputra, Boring Road, Patna- 13, P.O Boring Road, P.S. Patliputra, District Patna, Bihar.

3.The Deputy Inspector General, Industrial Security Force, Bokaro Steel Plant, Bokaro Ispat Nagar, Bokaro, P.O. Bokaro Steel City, P.S. Bokaro Steel City, District Bokaro, Jharkhand.

4.The Commandant, Industrial Security Force, Bokaro Steel Plant, Bokaro Ispat Nagar, Bokaro, P.O. & P.S. Bokaro Steel City, District Bokaro, Jharkhand.

.... Respondents/Respondents CORAM: HON'BLE THE CHIEF JUSTICE HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD

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For the Appellant : Mr. Anil Kumar Sinha, Sr. Advocate For the Respondents : Ms. Shreesha Sinha, A.C to A.S.G.I.

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Oral Judgment Order No. 5: Dated 4thOctober, 2021:

The instant intra-court appeal under Clause 10 of

Letters Patentis preferred against the order/judgment

dated 01.03.2021 passed by learned Single Judge in

W.P. (S) No. 3563 of 2009, whereby and whereunder the

learned Single Judge by dismissing the writ petition has

refused to interfere with the order of punishment

imposed by the respondents-authorities by which the

pay of the writ petitioner was reduced by one stage from

Rs. 4500 to Rs. 4400/- in the pay-scale of Rs. 4000-100-

6000 for a period of one year with further direction that

the writ petitioner will not earn increment during the

period of reduction and it will have effect on his future

increment.

2. The brief facts of the case, as per the pleadings

made in the writ petition, which are required to be

enumerated herein for proper adjudication of the lis, are

as under:

When the writ petitioner was posted as Head

Constable in CISF Unit at Bokaro Steel City on

06.06.2004 and was on patrolling duty at about 7.00

a.m., the parties of Crime Branch found that about 15 to

20 persons were stealing Iron Scraps.

On the basis of said incident, a departmental

proceeding was initiated against the petitioner, in which

he was found guilty and accordingly, punishment of

reduction of pay by one stage from Rs. 4500 to Rs.

4400/- in the 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 on his future increment, was imposed upon

the writ petitioner by the disciplinary authority, which

was affirmed by the appellate authority as well as by the

revisional authority.

Being aggrieved with the order of punishment, the

writ petitioner approached this Court by invoking writ

jurisdiction of this Court under Article 226 of the

Constitution of India by filing writ petition being W.P. (S)

No. 3563 of 2009 wherein ground has been taken that

the relevant documents were not provided to him and

was not allowed to cross-examine the witnesses even

though the punishment being a major. Further, no

person was seen at the place of occurrence from where

the iron scraps were alleged to be removed but the

inquiry officer has found the charges proved against him

without appreciating the material lacuna and even the

same has not been considered by the appellant or

revisional authority.

While, on the other hand, argument advanced on

behalf of respondents-CISF before the learned Single

Judge was that there is no violation of principles of

natural justice rather the writ petitioner was afforded

adequate opportunity to cross-examine the witnesses

but it is writ petitioner who had shown no desire to

cross-examine the witnesses. However, in order to

defend his case, he had examined the defense witness.

The enquiry officer, considering the materials available

on record, found the charges proved against the

petitioner, which was accepted by the disciplinary

authority, who imposed the impugned punishment,

which was affirmed by the appellate as well as by the

revisional authority, as such there are concurrent

finding recorded by the three administrative authorities

and the learned Single Judge after taking into

consideration these aspects of the matter has refused to

interfere with the order of punishment, which cannot be

said to suffer from any infirmity.

The learned Single Judge, after taking into

consideration the rival submissions of the parties,

dismissed the writ petition showing no interference with

the order of punishment, which is the subject matter of

present intra-court appeal.

3. We have heard learned counsel for the parties,

perused the documents available on record as also

finding recorded by the learned Single Judge.

4. Admitted fact in this case is that the writ

petitioner, who was appointed as a member of

disciplined force i.e. C.I.S.F., while posted as Head

Constable in CISF Unit at Bokaro Steel City, Bokaro was

assigned with patrolling duty in 1st Shift i.e. from 0500

hours to 1300 hours on 06.06.2004. In the meantime,

the Members of the Crime Wing during patrolling at

about 7.00 a.m. found that 15-20 persons were stealing

Iron Scraps from the area of patrolling of the writ

petitioner and further one rickshaw van was also found

from that area. As such, the petitioner was charge-

sheeted on the allegation that on 06.06.2004 while he

was on patrolling duty during 1st Shift commencing from

0500 hours to 1300 hours, about 15-20 criminals were

found stealing the iron scrap and one Rickshaw Van was

seized from the alleged place by the Crime Wing Staff

allegingit to be dereliction of duty, indiscipline and

misconduct.

On the aforesaid charge, a departmental

proceeding was initiated. The writ petitioner denied the

aforesaid charge by putting his appearance before the

enquiry officer. The enquiry officer conducted the

enquiry, in which, the witnesses were examined and

petitioner had also examined defence witness to defend

his case. The enquiry officer, considering the evidence,

documentary and oral, submitted his findings that the

charges leveled against the petitioner has been proved,

which was forwarded before the disciplinary authority.

The disciplinary authority accepted the finding recorded

by the enquiry officer and imposed the punishment vide

order dated 28.11.2004 of reduction of pay by one stage

from Rs. 4500 to Rs. 4400/- in the 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 on his future

increment, against which the writ petitioner preferred

appeal and revision, but both were rejected vide order

dated 24.02.2005 and 10.11.2005 by the appellate and

revisional authority respectively.

Being aggrieved with the order of punishment, the

writ petitioner approached this Court by filing writ

petition being W.P. (S) No. 3563 of 2009, but the learned

Single Judge has refused to interfere with the order of

punishment dated 28.11.2004passed by the disciplinary

authority.

5. The point which has been taken by learned senior

counsel for the petitioner while assailing the order

passed by the learned Single Judge is that there is

violation of principles of natural justice as the writ

petitioner was not allowed to cross-examine the

witnesses and further enquiry has been conducted in a

haphazard manner. It has further been argued that

other person who was on duty with the petitioner

wasneither charge-sheeted nor any departmental

proceeding was initiated against him, as such, the

disciplinary authority has adopted pick and chose

policy, but this fact has not been appreciated by learned

Single Judge. Therefore, the order passed by the learned

Single Judge suffers from infirmity.

6. While, on the other hand, Ms. Shreesha Sinha,

A.C to learned A.S.G.I. has submitted, by defending the

order passed by learned Single Judge, that there is no

violation of principles of natural justice as witnesses

have been examined in presence of petitioner but he has

not shown any willingness to cross-examine the

witnesses. Further, defence witness was examined on

behalf of petitioner in order to defend his case. The

disciplinary authority taking into consideration these

aspects of the matter has imposed the impugned

punishment, which was affirmed by the appellate as also

by the revisional authority.According to her, since there

is concurrent finding by the three administrative

authorities right from the disciplinary authority to

revisional authority, no scope of judicial review was

there before the learned Single Judge to interfere with

the decision of the administrative authorities. As such

submission has been made that since the learned Single

Judge taking into consideration the limited scope of

judicial review has refused to show any interference in

the order passed by the administrative authority, no

interference is required in the order passed by the

learned Single Judge.

7. This Court, in order to appreciate the submissions

advanced on behalf of parties deem it fit and proper to

refer certain judicial pronouncement of the Hon'ble

Supreme Court on the scope of judicial review in

exercise of power conferred under Article 226 of the

Constitution of India.

Reference in this regard be made to the judgment

rendered in Union of India & Ors Vs. P. Gunasekaran

as reported [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.

SmitaSharadDeshmukh and Anr.[(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 Central Industrial

Security Force and Ors. vs. Abrar Ali [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 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."

8. Thus, it is evident from the judicial

pronouncement of the Hon'ble Apex Court, as referred

herein above, that the judgment has been pronounced to

show interference by the High Court sitting under Article

226 of the Constitution of India in exercise of power of

judicial review, as per which, the High Court can

interfere sitting under Article 226 of the Constitution of

India under power of under judicial review in anyof the

eventuality as propounded in the judgment referred

herein above.

9. We arenow proceeding to examine the factual

aspects of the present case in order to see as to whether

there is any scope of judicial review to show interference

in the impugned order on the basis of material available

on record?

10. It is not the case of the writ petitioner, although

plea has been taken for not affording opportunity to

cross-examine the witnesses,that witnesses have not

been produced in presence of the writ petitioner rather

witnesses have been producedin his presence by the

administrative authorities and they have been examined.

It is also admitted fact that nothing has come on record

that the writ petitioner has shown his willingness by

making requisition for cross-examination of witnesses

produced on behalf of disciplinary authority, however,

the writ petitioner has produced the defence witness in

order to defend his case. Therefore, according to our

considered view, it cannot be said a case of breach of

principles of natural justice.

11. The other ground has been raised by learned

senior counsel appearing for the petitioner that since

other constable, who was on duty with the petitioner,

had not been proceeded departmentally, the entire

proceeding initiated against the petitioner will be said to

be vitiated.

In support of his argument, he has referred to the

judgment rendered by Hon'ble Apex Court in Life

Insurance Corporation of India & Ors Vs.

TriveniSharan Mishra [2014(6)Supreme 747].

12. We have considered the applicability of the

aforesaid judgment in the facts and circumstances of the

present case and found from the factual aspect involved

therein that the said judgment pertains to parity in

punishment.

There is no dispute about the settled position of

law that if departmental proceeding is initiated against

more than one delinquent-employee and if the allegation

leveled in the charge-sheet is exactly same and similar,

similar punishment is required to be imposed otherwise

it will hit the principle laid down under Article 14 of the

Constitution of India. But, in the case in hand, it is

admitted case of the writ petitioner that against the

constable, who is said to have been deputed along with

the petitioner, no departmental proceeding has been

initiated and as such there is no question of following

the principles of parity in punishment as when no

departmental proceeding was initiated there is no

question of imposing punishment at par with the

delinquent-writ petitioner. Therefore, in the given facts

of the case, the judgment rendered by Hon'ble Apex

Court in Life Insurance Corporation of India & Ors

Vs. TriveniSharan Mishra(supra) is not applicable.

13. So far as the contention that the same

departmental proceeding ought to have been initiated

against the co-employee since the same has not been

initiated therefore the entire departmental proceeding so

far it relates to the petitioner will also vitiate is

concerned, we have not impressed with such argument

as even accepting that no departmental proceeding has

been against the said constable, the question remains

that the writ petitioner is required to show his innocence

by denying his charge and even accepting that the

departmental proceeding would have been initiated

against the said constable then whether the writ

petitioner could have been said to be exonerated from

the charges. There is no dispute about the settled

position of law that in the departmental proceeding the

delinquent-employee has to prove his innocence about

his conduct and he cannot be allowed to show his

innocence on the ground thatfor the similar duty

assigned to other employee, no departmental proceeding

has been initiated.

Therefore, according to our view no advantage can

be derived by the writ petitioner on the ground that no

departmental proceeding has been initiated against the

other employee.

Further, no such plea was taken by the writ

petition before the writ Court since nothing has been

recorded in the order passed by the learned Single Judge

save and except the principle of violation of natural

justice and not allowing the writ petitioner to cross

examine the witnesses.

14. We are, therefore, of the view that the writ

petitioner has failed to make out a case showing

interference by this Court under Article 226 of the

Constitution of India by exercising the power of judicial

review as per the proposition of law laid down in Union

of India Vs. P. Gunasekaran(supra) and Central

Industrial Security Force and Ors. vs. Abrar Ali

(supra).

15. Further, as per the settled position of law, the fact

finding recorded by the enquiry officer is least to be

interfered with as has been held by Hon'ble Apex Court

in the judgment referred herein above and herein the

order passed by the disciplinary authority has been

confirmed by the appellate authority as well as by the

revisional authority and as such, there are three

concurrent finding by the administrative authorities

which is also one of the grounds for not showing

interference in the impugned decision.

16. We have gone across the order passed by the

learned Single Judge and found therefrom that all these

aspects of the matters, which we have discussed herein

above has been well considered by the learned Single

Judge and even the order passed by the Hon'ble

Supreme Court as referred herein above has also been

taken note of therein, basis upon which the writ petition

has been found to be devoid of merit.

17. We, on the basis of entirety of facts and

circumstances of the case, are of the considered view

that the order passed by the learned Single Judge

suffers from no infirmity.

18. Accordingly, the appeal fails, and is dismissed.

(Dr. Ravi Ranjan, C.J.)

(Sujit Narayan Prasad, J.) Alankar/ -

A.F.R.