Jharkhand High Court

Fuljhari Devi vs The Union Of India Mha on 1 May, 2023

             IN THE HIGH COURT OF JHARKHAND AT RANCHI
                         L.P.A. No.256 of 2020
             Fuljhari Devi, aged about 61 years, wife of Hiralal Mahto,
             resident of village Soniya, P.O. Daudpur Soniya, P.S. Daudpur,
             District Chhapra, Bihar.
                                                                 .......... Appellant
                                            Versus
         1. The Union of India MHA, through its Secretary, Ministry of Home
            Affairs, North Block, New Delhi, P.O. & P.S. North Block, New
            Delhi-110001.
         2. The Deputy General, CISF, CISF Head Quarters, CGO, Complex,
            Lodhi Road, P.O. & P.S. Lodhi Road, New Delhi-110003.
         3. The Inspector General, CISF, East Sector, Boring Road Patna,
            P.O. & P.S. Boring Road, District Patna, Bihar.
         4. The D.I.G., CISF, M/s Bharat Coking Coal Limited, Koyla Nagar,
            Dhanbad, P.O., P.S. & District-Dhanbad.
         5. The Commandant, CISF Unit, DVC-Panchet, P.O. & P.S. DVC-
            Panchet, District Dhanbad, Jharkhand.
                                                             .......Respondents.
                                             -------
         CORAM:HON'BLE MR. JUSTICE SUJIT NARAYAN PRASAD
                         HON'BLE MR. JUSTICE SUBHASH CHAND
                                             -------
         For the Appellant             :Mr. Rahul Kumar, Advocate
                                        Ms. Apoorva Singh, Advocate
         For the Respondents           :Mrs. Leena Mukherjee, Advocate
                                ----------------------------
Per :Sujit Narayan Prasad, J.

07/Dated: 1st May, 2023

I.A. No.814 of 2021

1. The instant interlocutory application has been filed for substitution

of the appellant through his legal heir as per the detail furnished in

paragraph 7 of the instant interlocutory application, since, he has

died during pendency of the present appeal.

2. Considering the reason assigned in the instant interlocutory

application, the same is allowed.

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3. Office is directed to make necessary correction in the cause title of

the present appeal.

4. I.A. No.814 of 2021 stands disposed of.

I.A. No.4133 of 2022

5. This interlocutory application has been filed for condoning the delay

of 351 days, which has occurred in preferring this appeal.

6. No counter to the delay condonation application has been filed.

7. Heard the parties.

8. This Court taking into consideration the reasons assigned in the

instant interlocutory application, is of the view that the appellant

was prevented from sufficient cause in filing the appeal.

9. Accordingly, taking into consideration the aforesaid fact, this

interlocutory application is allowed and the delay of 351 days in

preferring this appeal, is hereby, condoned.

10. In view thereof, the instant interlocutory application stands disposed

of.

L.P.A. No. 256 of 2020

11. The matter has been taken up with consent of the learned counsel

for the parties.

12. This intra court appeal is under Clause 10 of the Letters Patent is

directed against the order/judgment dated 23rd July, 2019 passed by

the learned Single Judge of this Court in W.P.(S) No.1472 of 2012, [3]

whereby and whereunder, while dismissing the writ petition, the

learned Single Judge has refused to interfere with the decision

taken by the administrative authority dated 25th June, 2011,

whereby and whereunder, the petitioners has been removed from

service on the ground that that he has obtained the service on the

basis of forged caste certificate. The appellate order dated 31st

August, 2011 has also been refused to be interfered with.

13. The brief facts of the case as per the pleading made in the writ

petition required to be enumerated, reads as under:

The writ-petitioner jointed Central Industrial Security Force on

1st March, 1973 as Constable and thereafter he was promoted to the

post of Head Constable. On 25th June, 2011, the writ-petitioner was

removed from service vide order no. V-15014 / CISF /BCCL / DISC /

HLM / 2011-8067. Thereafter, he has filed an appeal representation

on 16th July, 2011 against the order of removal from service before

DIG, CISF, BCCL, Dhanbad for conversion into VRS instead of

removal punishment. The appellate authority i.e., DIG, CISF, BCCL,

Dhanbad rejected the said representation vide letter no. V-15014 /

CISF / BCCL / DISC / HLM / 2011-10033 dated 31st August, 2011.

14. The writ-petitioner being aggrieved with the order of removal dated

25th June, 2011 and appellate order dated 31st August, 2011 have

challenged the same before this Court by filing a writ petition being

W.P.(S) No.1472 of 2012. The learned Single Judge after taking into

consideration the fact that the order of removal has been passed on

conclusion of a departmental proceeding, wherein the charge [4]

levelled against the appellant has been found to be proved and

accordingly the punishment of removal from service has been

inflicted vide order dated 25th June, 2011. The appellant has

challenged the aforesaid order before the appellate authority and

the revisional authority but the appellate authority as also the

revisional authority had affirmed the order passed by the original

authority vide order 31st August, 2011 and 12th January, 2012

respectively.

15. Mr. Rahul Kumar, learned counsel appearing for the appellant - writ

petitioner has submitted that the writ-petitioner has not been

provided with an opportunity of hearing, since, the order of removal

has been passed on the basis of the ex parte departmental

proceeding and, hence, the order of removal since is based upon

without providing any opportunity of hearing, the same is not

sustainable but this aspect has not been considered, by the learned

Single Judge.

16. On the other hand, Mrs. Leena Mukherjee, learned counsel

appearing for the respondent--Union of India has submitted that in

the ex parte inquiry if the delinquent employee has chosen not to

appear then it is not available for the delinquent employee to raise

the issue of violation of principles of natural justice. Learned counsel

for the respondents, therefore, submits that since the order of

removal has been passed by the disciplinary authority by taking into

consideration the finding recorded by the inquiry officer, wherein

the charge has been found to be proved and the same having been [5]

accepted, therefore, the order of removal if declined to be interfered

with by the learned Single after taking into consideration the fact

that the appellate as also the revisional authority concurred with the

aforesaid finding, the same cannot be said to be suffer from an

error.

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

documents available on record as also the finding recorded by the

learned Single Judge in the impugned judgment.

18. The ground has been agitated on behalf of the appellant in assailing

the impugned order that the basis of order of removal is the finding

recorded in the inquiry proceeding which was ex parte. The Hon'ble

Apex Court in the case of Bank of India v. Apurba Kumar Saha

reported in (1994) 2 SCC 615 at paragraph 4 has held as under :

"4. ... A bank employee who had refused to avail of the opportunities provided to him in a disciplinary proceeding of defending himself against the charges of misconduct involving his integrity and dishonesty, cannot be permitted to complain later that he had been denied a reasonable opportunity of defending himself of the charges levelled against him and the disciplinary proceeding conducted against him by the bank employer had resulted in violation of principles of natural justice of fair hearing."

19. The law is equally settled that once the proceeding has been set at

ex parte the plea of principles of natural justice is not permissible as

has been held by the Hon'ble Apex Court in the case of SBI v.

Narendra Kumar Pandey reported in (2013) 2 SCC 740.

Paragraphs 22, 23, 25, 26 and 27 of the said judgment read as

under :

"22. We are of the view that the High Court also committed an error in holding that since no witness was examined in support [6]

of the charges, it was a case of no evidence. In an ex parte inquiry, in our view, if the charges are borne out from the documents kept in the normal course of business, no oral evidence is necessary to prove those charges. When the charged officer does not attend the inquiry, then he cannot contend that the inquiring authority should not have relied upon the documents which were not made available or disclosed to him. Of course, even in an ex parte inquiry, some evidence is necessary to establish the charges, especially when the charged officer denies the charges, uncontroverted documentary evidence in such situation is sufficient to prove the charges.

23. The inquiring authority has examined each and every charge levelled against the charged officer and the documents produced by the presenting officer and came to the conclusion that most of the charges were proved. In a departmental enquiry, the disciplinary authority is expected to prove the charges on preponderance of probability and not on proof beyond reasonable doubt. Reference may be made to the judgments of this Court in Union of India v. Sardar Bahadur and R.S. Saini v. State of Punjab. The documents produced by the Bank, which were not controverted by the charged officer, support all the allegations and charges levelled against the charged officer. In a case, where the charged officer had failed to inspect the documents in respect of the allegations raised by the Bank and not controverted, it is always open to the inquiring authority to accept the same.

25. The High Court, in our view, under Article 226 of the Constitution of India was not justified in interfering with the order of dismissal passed by the appointing authority after a full-fledged inquiry, especially when the Service Rules provide for an alternative remedy of appeal. It is a well-accepted principle of law that the High Court while exercising powers under Article 226 of the Constitution does not act as an appellate authority. Of course, its jurisdiction is circumscribed and confined to correct an error of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of the principles of natural justice. In SBI v. Ramesh Dinkar Punde (2006) 7 SCC 212] this Court held that the High Court cannot reappreciate the evidence acting as a court of appeal. We have, on facts, found that no procedural irregularity has been committed either by the Bank, presenting officer or the inquiring authority. Disciplinary proceedings were conducted strictly in accordance with the Service Rules.

26. This Court in State of A.P. v. S. Sree Rama Rao [AIR 1963 SC 1723] held: (AIR pp. 1726-27, para 7)

"7. ... Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence especially when the charged officer had not participated in the inquiry and had not raised the grounds urged by him before the High Court by the inquiring authority."

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27. This Court in Lakshmi Devi Sugar Mills Ltd. v. Ram Sarup [AIR 1957 SC 82] held that where a workman intentionally refuses to participate in the inquiry, he cannot complain that the dismissal is against the principles of natural justice. Once the inquiry proceeds ex parte, it is not necessary for the inquiring authority to again ask the charged officer to state his defence orally or in writing. We cannot appreciate the conduct of the charged officer in the instant case, who did not appear before the inquiring authority and offered any explanation to the charges levelled against him but approached the High Court stating that the principles of natural justice had been violated."

20. Herein also in the given fact of the case, it is not the case of the

appellant that while initiating the departmental proceeding no notice

has been issued, rather, it appears from the record that the

appellant has chosen not to appear which led the inquiry officer to

set the inquiry to be an ex parte. Therefore, once the appellant has

chosen not to participate in the inquiry, on the basis of that if the

inquiry proceeding has been set at ex parte, it is not available for

the appellant to take the ground of violation of principles of natural

justice.

The question of interference of the Writ Court in exercise of

power of judicial review has already been laid down by the Hon'ble

Apex Court in the case of Union of India v. P. Gunasekaran

reported in (2015) 2 SCC 610. Paragraphs 12 & 13 of the said

judgment read as under :

"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;

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(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."

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

Security Force and Ors. vs. Abrar Ali reported in AIR (2017)

SC 200, wherein the following guidelines have been laid down,

showing interference by the High Court in the matter of punishment

imposed on conclusion of the departmental proceeding, the same

extract of paragraph 8 thereof, is referred hereinbelow:

"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 [9]

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 reappreciation 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. (Vide B.C. Chaturvedi v. Union of India [(1995) 6 SCC 749: 1996 SCC (LandS) 80: (1996) 32 ATC 44] : (AIR 1996 SC 484) ; Union of India v. G. Ganayutham [(1997) 7 SCC 463: 1997 SCC (LandS) 1806] : (AIR 1997 SC 3387) ; Bank of India v. Degala Suryanar-ayana [(1999) 5 SCC 762: 1999 SCC (LandS) 1036] : (AIR 1999 SC 2407) and High Court of Judicature at Bombay v. Shashikant S. Patil. (AIR 2000 SC 22)".

21. Herein the charge regarding false caste certificate for the purpose of

getting appointment has conclusively been proved and in

consequence of the acceptance of the finding of the inquiry officer,

the disciplinary authority as decided to inflict the punishment of

removal from service which has been affirmed by the appellate

authority vide order dated 31st August, 2011 and revisional authority

vide order dated 12th January, 2012.

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22. Therefore, this Court is of the view that it is not a case where in

view of power of judicial review any interference can be sought. The

learned Single Judge after taking into consideration the aforesaid

fact, if has declined to interfere with the impugned order(s), which

according to our view cannot be said to suffer from an error.