Rajasthan High Court

M K Mishra vs U O I And Ors on 6 January, 2022

Bench: Mahendar Kumar Goyal

      HIGH COURT OF JUDICATURE FOR RAJASTHAN
                  BENCH AT JAIPUR

              S.B. Civil Writ Petition No. 17481/2015

M.K. Mishra S/o Sh. Kshirod Kr Mishra, aged about 55 years, R/o
Village Purusottampur, Post/Via Simulia, Distt. Balasore, Odisha,
Pin-756166
                                                                     ----Petitioner
                                     Versus
1.     Union Of India Through Ministry Of Homes Affairs, New
       Delhi, India
2.     The Inspector General/North Sector, Central Industrial
       Security Forces, CISF Campus, Saket, Malviya Nagar, New
       Delhi 110017
3.     The Deputy Inspector General/NZ, Central Industrial
       Security Forces, NZ Head Quarters, Saket, New Delhi
                                                                  ----Respondents

For Petitioner(s) : Mr. Vikash Kabra through VC For Respondent(s) :

HON'BLE MR. JUSTICE MAHENDAR KUMAR GOYAL

Order

06/01/2022

This writ petition has been filed assailing the legality and

validity of the order dated 03.11.2014 passed by the Appellate

Authority, Inspector General, North Sector, Central Industrial

Security Forces in the Ministry of Home Affairs, Government of

India (for brevity, "CISF") dismissing the appeal preferred by the

petitioner against the order dated 27.07.2014 passed by the

disciplinary authority, Deputy Inspector General/NZ CISF whereby,

he was punished with the penalty of compulsory retirement with

full compensation pension/gratuity and pensionary benefits as

admissible under the Rules on the date of compulsory retirement.

(2 of 6) [CW-17481/2015]

The facts in brief, as emerge from the writ petition, are that

a complaint dated 14.01.2014 of sexual harassment was

submitted by a lady Constable against the petitioner, an Assistant

Commandant, whereupon, a Sector Level Complaint Committee

was constituted by the Inspector General, CISF in pursuance of

the CISF Circular 01/2006 dated 13.01.2006 and letter dated

22.05.2006 to enquire into the complaint. Vide charge

memorandum dated 24.03.2014, the petitioner was served upon

with charge-sheet containing two articles of allegations. After

conducting the enquiry in accordance with the statutory

provisions, the Sector Level Complaint Committee vide its enquiry

report dated 29.05.2014, found both the articles of charges

proved against the petitioner. Vide letter dated 13.06.2014, the

petitioner has submitted his reply/representation to the enquiry

report. The disciplinary authority has, vide its order dated

24.07.2014, after appreciating the material on record including

the reply submitted by the petitioner, passed the order of

punishment as stated hereinabove. The order was unsuccessfully

challenged by the petitioner by way of an appeal which has been

dismissed vide order dated 03.11.2014 by the appellate authority.

Assailing the order impugned, learned counsel for the

petitioner submitted that the allegations against him were not

proved by cogent evidence. He submitted that it could not be

established by any scientific evidence that voice contained in the

mobile conversation, alleged to be of him, was as a matter of fact,

was his. He, therefore, prayed that the writ petition be allowed

and the order impugned dated 03.11.2014 be quashed and set

aside.

(3 of 6) [CW-17481/2015]

Heard learned counsel for the petitioner and perused the

record.

The order impugned punishing the petitioner has not been

assailed on the ground suffering from any procedural lapses or

that the same has been passed without affording him opportunity

of hearing. Since, the enquiry has been conducted as per the

procedure prescribed and there is no allegation of violation either

of the procedure prescribed or the principles of natural justice, the

scope of interference by this Court is within very limited compass.

In case of Apparel Export Promotion Council Vs. A.K. Chopra,

(1999) 1 SCC 759, their Lordships have held as under:

"16.The High Court appears to have over-looked the settled position that in departmental proceedings, the Disciplinary Authority is the sole Judge of facts and in case an appeal is presented to the Appellate Authority, the Appellate Authority has also the power/and jurisdiction to re- appreciate the evidence and come to its own conclusion, on facts, being the sole fact finding authorities. Once findings of fact, based on appreciation of evidence are recorded, the High Court in Writ Jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since, the High Court does not sit as an Appellate Authority, over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot normally speaking substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the Disciplinary or the Departmental Appellate Authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Both the learned Single Judge and the Division Bench of the High Court, it appears, ignored the well-settled principle that even though Judicial Review of administrative action must remain flexible and its dimension not closed, yet

(4 of 6) [CW-17481/2015]

the Court in exercise of the power of judicial review is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial Review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision-making process. Lord Hailsham in Chief Constable of the North Wales Police v. Evans, (1982) 3 All ER 141 (HL), observed:

'.....The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorized or enjoined by law to decide for itself, a conclusion which is correct in the eyes of the court.'

17. Judicial Review, not being an appeal from a decision, but a review of the manner in which the decision was arrived at, the Court while exercising the power of Judicial Review must remain conscious of the fact that if the decision has been arrived at by the Administrative Authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the Court cannot substitute its judgment for that of the Administrative Authority on a matter which fell squarely within the sphere of jurisdiction of that authority." (emphasis in original)

A three-Judges Bench of the Hon'ble Apex Court in the case

of State Bank of India Vs. Ram Lal Bhaskar & Ors.,

MANU/SC/1237/2011, held as under:

"8. Thus, in a proceeding under Article 226 of the Constitution, the High Court does not sit as an appellate authority over the findings of the disciplinary authority and so long as the findings of the disciplinary authority are supported by some evidence the High Court does not re-appreciate the evidence and come to a different and independent finding on the evidence. This position of law has been reiterated in several decisions by this Court which we need not refer to, and yet by the impugned judgment the High Court has re- appreciated the evidence and arrived at the conclusion that the findings recorded by the enquiry officer are not substantiated by any material on record and the allegations leveled

(5 of 6) [CW-17481/2015]

against the Respondent No. 1 do not constitute

was not guilty of any misconduct."

If the order impugned is examined in the backdrop of law

laid down by the Hon'ble Apex Court, it is revealed that the

findings recorded therein are based on cogent evidence on record.

The disciplinary authority before passing the order of punishment

dated 24.07.2014, appreciated the findings of the Enquiry

Committee in the light of evidence on record including the

reply/representation submitted by the petitioner against the

enquiry report. He has recorded a categorical finding that from the

material on record including the statement of the witnesses and

documentary evidence, it was established that the petitioner used

to mentally harass and torture the complainant repeatedly.

Confirming the findings recorded so by the disciplinary authority,

the appellate authority has also found that from the material on

record, it was established that the complainant was being

continuously subjected to sexual harassment by the petitioner.

So far as contention of the learned counsel that it could not

proved by scientific evidence that voice in the mobile conversation

was his, is concerned, suffice is to say that the same has been

found to be proved on the basis of oral as well as documentary

evidence on record.

Their Lordships of the Hon'ble Apex Court have, in the case

of Deputy General Manager (Appellate Authority) & Ors. Vs.

Ajai Kumar Srivastava, (2021) 2 SCC 612, held as under:-

"27. It is true that strict rules of evidence are not applicable to departmental enquiry proceedings. However, the only requirement of law is that the allegation against the delinquent must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravity of the charge against the delinquent employee. It is true that mere

(6 of 6) [CW-17481/2015]

conjecture or surmises cannot sustain the finding of guilt even in the departmental enquiry proceedings.

28. The constitutional court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of malafides or perversity, i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at those findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained."

From the order impugned, it is apparent that the findings

recorded are supported by evidence on record, which, this Court in

its writ jurisdiction would not like to interfere with in absence of

the same suffering from any illegality or perversity.