Allahabad High Court
Jagat Singh vs State Of U.P. And Others on 16 January, 2012
Author: Sunita Agarwal
Bench: Sunita Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD
In Chamber Reserved on 5.1.2012
Delivered on 16.1.2012
Civil Misc. Writ Petition No. 9360 of 2006
Jagat Singh Vs. State of U.P. and others
Hon'ble Mrs. Sunita Agarwal,J.
Heard Shri Y.M. Mishra, Advocate, holding brief of Shri Rajesh Kumar, learned counsel for the petitioner and learned Standing Counsel for the respondents. Petitioner has not impleaded Inspector General P.A.C. East Zone, U.P. Lucknow as respondent no.5 in the array of parties despite order dated 5.1.2007 passed by this Court.
Three days' further time is allowed to counsel for the petitioner to carry out necessary amendments in the array of parties .
By means of this petition, petitioner has challenged the orders dated 17.8.2005, 31.10.2005 and 3.6.2006 passed by respondent nos.3 , 2 and newly added respondent no.5; respectively. Further, mandamus is sought commanding the respondents to reinstate the petitioner in service with all consequential benefits and pay him salary month by month together with arrears.
Brief facts of the case are that:-
The petitioner was recruited as constable on 1.4.1992 in Schedule Tribes category on the basis of caste certificate in Provincial Armed Constabulary ( hereinafter referred to as 'P.A.C.'). An inquiry was initiated against the petitioner in the year 2003 at the time when he moved an application for promotion on the post of Head Constable. The letter No.P-3/2003 dated 16.12.2003 was issued by the concerned officer casting doubt upon the genuineness of the caste certificate submitted by the petitioner. The letter was issued to Tehasildar, Derapur, Kanpur Dehat to verify the said certificate. A report dated 22.2.2003 of the Sub-Divisional Officer, Kanpur Dehat was received in reply thereto wherein it was stated that caste certificate submitted by the petitioner of "Tharu Caste" was a forged certificate. On the basis of said verification report, inquiry was initiated against the petitioner.
The preliminary inquiry was conducted by the Assistant Commandant and report dated 17.12.2003 was submitted. Thereafter, two supplementary preliminary inquiry reports were submitted on 6.8.2004 and 22.9.2004.
Petitioner was issued a charge sheet dated 6.10.2004 to which reply was submitted on 27.10.2004. The charge sheet contained imputation of charges along with witnesses, who were to be examined in support of the charges. The inquiry report dated 30.6.2005 was submitted by the Inquiry Officer whereby recommendation has been made for dismissal of the petitioner in accordance with the provisions of rule 4 (1)(a) (i) of U.P. Police Officer of the Subordinate Rank (Punishment and Appeal) Rules, 1991 (hereinafter referred to as "1991 Rules"). The inquiry report was duly supplied to the petitioner alongwith show cause notice dated 12.7.2005 and petitioner was called upon to show cause as to why dismissal order be not passed against him. Petitioner submitted his explanation on 8.8.2005 and order of dismissal was passed by respondent no.3 on 17.8.05.
The appeal filed by the petitioner, as provided under rule 10 of the 1991 Rules was also dismissed vide order dated 31.10.2005 passed by respondent no.2. The revision under para 511 as contained in Chapter XXXIII of U.P. Police Regulation was filed alongwith delay condonation application before the respondent no.5, but the same was dismissed vide order dated 3.6.2006 being barred by time.
The petitioner's case is that the entire inquiry proceeding initiated against him was on the ground of caste certificate dated 21.8.1990 being found forged upon verification and report of Sub-Divisional Officer dated 22.2.2003. Petitioner claimed that he belongs to "Tharu Caste", which is Scheduled Tribes and caste certificate issued in this regard cannot be said to be forged one. He further claimed that he belongs to caste "Kanmailiaya" which is sub-caste of "Tharu". The petitioner further submitted that Gram Pradhan Smt. Puspa Devi gave a certificate in his favour and has approved that the petitioner belonged to "Tharu Kanmailiya Caste" and was originally resident of Aurangabad, Police Station Mangalpur, Tehsil Derapur, District Kanpur Dehat.
Petitioner further submitted that the department had sent his certificate to the concerned Tehsil for its verification in the year 2003 at the time of consideration of his claim for promotion and by that time, the record of Tehsil Derapur including caste certificate issued in the year 1989-90 to 1992-93 was weeded out, in view of the order dated 20.12.1995 of the S.D.M. Tehasil Derapur. A copy of the order dated 20.12.1995 has been annexed as annexure-3 to the writ petition. He further submitted that the caste certificate of the petitioner could not be verified on account of said fact and as such no inquiry could have been proceeded against him. He further relied upon the report dated 30.12.2003 of concerned Registrar Kanoongo, Kanpur Nagar and letter of respondent no.4 dated 8.12.2003 in order to substantiate his contention that in view of the record pertaining to caste certificate (including that of petitioner) having been wedded out, genuineness of the caste certificate of the petitioner could not have been examined.
The further submission of the learned counsel for the petitioner is that caste certificate having been issued by the concerned Tehsildar has never been cancelled and as such same shall be deemed to be a genuine document. The respondent authorities have no jurisdiction to arrive at an adverse conclusion only on the basis of statement of the officer and villagers against the petitioner. The entire finding is vitiated on this ground and as such impugned orders dismissing him from service and further affirmation of same passed by the respondent authorities are liable to be quashed.
Learned Standing Counsel appearing on behalf of the respondents submits that the very basis of recruitment of the petitioner in P.A.C. as constable in Scheduled tribes category i.e. the caste certificate dated 21.8.1990 found to be forged. In departmental inquiry proceeded against him, the petitioner was rightly dismissed from service and there is no infirmity in the order passed by respondent authorities. He further submits that once caste certificate was found to be forged upon verification from the Tehsildar and report has been submitted by the Sub-Divisional Officer dated 22.2.2003 after verification from the record of Tehsildar that no such certificate was ever issued in favour of the petitioner being of "Tharu Caste", there is no question of cancellation of caste certificate which itself was found to be forged one.
With regard to the submission of learned counsel for the petitioner that vide order 20.12.1995 of the Sub-Divisional Officer Derapur, the relevant record including the caste certificate of the petitioner has been weeded out. Learned Standing Counsel has relied upon the document annexed as annexure C.A.1, which is the report with regard to weeding out of the documents in accordance with para 25, part 2 of "Collection of Orders of U.P. Revenue Department". He submitted that from perusal of the weeding report, which is annexed as annexure C.A. 1 to the affidavit, it is clear that approval was granted to weed out the documents from serial no.1 to 4 of given list of documents. However documents mentioned at serial no.5 were not weeded out inasmuch as order dated 20.12.2005 clearly recommends that documents from serial no.1 to 4 be weeded out. The said recommendation was approved on 21.12.2005 "as proposed". It was further submitted that in the typed copy of weeding report dated 20.12.1995 annexed with the writ petition there is an overwriting in the recommendations which says "Kramank EK Per Lagyat Char" and No.4 has been overwritten as 5.
He further submits that even otherwise, petitioner was granted full opportunity of hearing by the respondent authorities and full fledged departmental inquiry in accordance with provision of Rule 1991 was conducted against him and he was afforded a reasonable opportunity of defending himself. The charge sheet containing imputation of charges and witnesses was served upon him and inquiry report shows that petitioner had defended himself. Copy of the inquiry report was duly supplied to him and was directed to submit his reply to proposed punishment. A finding of fact regarding caste certificate being found forged has been recorded against the petitioner in the departmental inquiry. No relief can be granted to the petitioner in exercise of power under Article 226 of the Constitution of India. The power of judicial review in departmental inquiry is limited and the scope of judicial review is confined to make decision process only. The decision making process cannot be said to be faulty. Petitioner received fair treatment and the order has been passed by the competent authority authorized by law.
I have heard learned counsel for the parties and perused the record.
The facts recorded hereinabove are not in dispute between the parties except the contents with regard to verification of caste certificate and weeding out report dated 20.12.1995. In view of the facts and pleading of the parties, the question which arises for consideration of this court is that as to whether in the facts and circumstances of the present case, the court would exercise its jurisdiction under Article 226 of the Constitution of India in favour of the petitioner.
It is well settled that so far as the departmental inquiry and action of competent authorities in dismissing the service of incumbent is concerned the scope of judicial review is confined to the decision making process. Scope of judicial review can not be extended to the examination of correctness or reasonableness of a decision as a matter of fact.
Where the inquiry is conducted on the charges against the public servant, the court is to examine and determine ;
(I) Whether the inquiry was held by the competent authority;
(ii) Whether rules of natural justice are complied with;
(iii) Whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or conclusion;
The technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the court. The doctrine of "proof beyond doubt" has no application. Preponderance of probabilities and some material on record are necessary to arrive on the conclusion whether or not the delinquent has committed misconduct.Per Lalit Popli Vs. Canara Bank and others, reported in 2003 (3) SCC, 583.
In fact the petitioner is trying to assail the correctness of findings of disciplinary authorities as if before an appellant forum. The issue was considered by the Apex court in 1992 Supp. (2) SCC 312, H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal and others Vs. M/s Gopi Nath & sons and others. Relevant paragraph 8 is as under:
"8...... Judicial review, it is trite, is not directed against the decision but is confined to the decision making process. Judicial review cannot extended to the examination of the correctness or reasonableness of a decision as a matter of fact. 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 authorised by law to decide, a conclusion which is corect in the eyes of the Court. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It will be erroneous to think that the Court sits in judgement not only on the correctness of the decision making process but also on the correctness of the decision itself."
Following the same view, it was expressed in 1994 (2) SCC, 357, Union of India and others Vs. Upendra Singh. Relevant paragraph 6 is as under: :-
"6......... The truth or otherwise of the charges is a matter for the disciplinary authority to go into. Indeed, even after the conclusion of the disciplinary proceedings, if the matter comes to court or tribunal, they have no jurisdiction to look into the truth of the charges or into the correctness of the findings recorded by the disciplinary authority or the appellate authority as the case may be. The function of the court/tribunal is one of judicial review, the parameters of which are repeatedly laid down by this Court. It would be sufficient to quote the decision in H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Kamal v. Gopi Nath & Sons5. The Bench comprising M.N. Venkatachaliah, J. (as he then was) and A.M. Ahmadi, J., affirmed the principle thus : (SCC p. 317,para 8)"
In 1995 (6) SCC 749 , B.C. Chaturvedi Vs. Union of India, the Apex court reiterated the same. The relevant paragraphs 12 and 13 are as under:
"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case."
" 13. The disciplinary authority is the sole judge of facts. Where appeal is presented. The appellate authority has co-extensive power to re-appreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 781], this Court held at page728 that if the conclusion,upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
In recent decisions the apex court has reiterated the scope of judicial review in dealing with departmental inquiries in 2009 (8) SCC 310 State of U.P. and another Vs. Man Mohan Nath Sinha and another. It has been held that it is not open to the High Court to reappreciate and reappraise the evidence led before inquiry officer and examine the finding recorded by the inquiry officer as a court of appeal and reach its own conclusion by restoring the petition and sending the matter back to the High Court, it was observed that High Court fell into grave error in scanning evidence as if it was a court of appeal.
In the said matter, the High Court while examining impugned order formulated the question for consideration as to whether in view of the evidence on record the charge levelled against the delinquent stood proved and further proceeded to appreciate the evidence and set aside the order of dismissal. Relevant paragraphs 13, 14 and 15 are as under:
"13. The aforesaid decisions were noticed by a Constitution Bench of this court in State of Madars V. G. Sundaram, and it has been held that it is not open to the High Court to reappreciate the evidence before the Tribunal and record the conclusion that the evidence does not establish charges against the delinquent. In the words of the Constitution Bench:(AIR p. 1105, paras 9-10) "9. It is, therefore, clear that the High Court was not competent to consider the question whether the evidence before the Tribunal and the Government was insufficient or unreliable to establish the charge against respondent. It could have considered only the fact whether there was any evidence at all which, if believed by the Tribunal, would establish the charge against the respondent. Adequacy of that evidence to sustain the charge is not a quest before the High Court when exercising its jurisdiction under Article 226 of the Constitution. This view was reiterated in Union of India V. H.C. Goel.
10. It is, therefore, clear that the High Court was in error in re-appreciating the evidence before the Tribunal and recording the conclusion that evidence did not establish the charges against the respondent."
"14.The scope of judicial review in dealing with departmental enquiries came up for consideration before this Court in the case of State of Andhra Pradesh And Ors. vs. Chitra Ventaka Rao and this Court held:
"21. .........The High Court is not a court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, 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 to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226 .
x x x
23. The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The Court exercises it not as an appellate court. The findings of fact reached by an inferior court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal. See Syed Yakoob v. K.S. Radhakrishna, AIR 1964 SC 477.
24. The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do."
"15. The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision-making process. The court does not sit in judgement on merits of the decision................."
In another decision in 2010(11) SCC 233 General Manager (p) Punjab & Sindh Bank and others Vs. Daya Singh.Relevant paragraphs 24 and 25 are as under:
"24. Absence of reasons in a disciplinary order would amount to denial of natural justice to the charge- sheeted employee. But the present case was certainly not one of that category. Once the charges were found to have been established, the High Court had no reason to interfere in the decision. Even though there was sufficient documentary evidence on record, the High Court has chosen to hold that the findings of the Inquiry Officer were perverse. A perverse finding is one which is based on no evidence or one that no reasonable person would arrive at. This has been held by this Court long back in Triveni Rubber & Plastics vs. CCE AIR 1994 SC 1341. Unless it is found that some relevant evidence has not been considered or that certain inadmissible material has been taken into consideration the finding cannot be said to be perverse. The legal position in this behalf has been recently reiterated in Arulvelu and Another vs. State Represented by the Public Prosecutor and Another (2009) 10 SCC 206. The decision of the High Court cannot therefore be sustained. "
"25 As held in T.N. C.S. Corporation Ltd. vs. K. Meerabai (2006) 2 SCC 255 the scope of judicial review for the High Court in departmental disciplinary matter is limited. The observation of this Court in Bank of India v. Degala Suryanayana are quite instructive: SCC pp.768-69, para 11) "11.Strict rules of evidence are not applicable to departmental enquiry proceedings. The only requirement of law is that the allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting reasonably and with objectivity may arrive at a finding upholding the gravamen of the charge against the delinquent officer. Mere conjecture or surmises cannot sustain the finding of guilt even in departmental enquiry proceedings. The court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings excepting in a case of mala fides 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 that finding. The court cannot embark upon reappreciating the evidence or weighing the same like an appellate authority. So long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained. In Union of India v. H.C. Goel the Constitution Bench has held: (AIR p.. 370,para 23) "23.......... the High Court can and must enquire whether there is any evidence at all in support of the impugned conclusion. In other words, if the whole of the evidence led in the enquiry is accepted as true, does the conclusion follow that the charge in question is proved against the respondent? This approach will avoid weighing the evidence. It will take the evidence as it stands and only examine whether on that evidence legally the impugned conclusion follows or not."
In view of the aforesaid discussion and the fact that petitioner had participated in the inquiry proceeding. The caste certificate was found to be forged on the basis of the report upon verification of same from Tehasil. The contention of the petitioner regarding weeding order dated 20.12.1995 was not accepted on the basis of weeding report and finding was recorded that record pertaining to caste certificate was never weeded out. The court comes to as irresistible conclusion that it is not open for the petitioner to challenge the said finding in writ petition. The court cannot reappreciate the material on record.
A feeble attempt has been made by the petitioner in submitting that the report dated 22.2.2003 of the S.D.M. was not supplied to him and as such principles of natural justice has not been complied with. In the instant case petitioner was supplied with preliminary inquiry report, charge sheet to which he replied and participated in the inquiry. The inquiry report was supplied to him alongwith show cause notice. The averment made by the petitioner for non-supply of the inquiry report of S.D.M. dated 22.2.2003 that too in paragraph 11 of the rejoinder affidavit is not a good ground to challenge the entire departmental proceedings.
It has been held in catena of decision and the ratio laid down in ECIRVs. Karunakarn 1993 (4) SCC 727 is whether in fact prejudice has been caused to the employee or not on account of non-supply of a report. The prejudice must be proved and not presumed. The same principle was followed and reitreated in 2010 (3) SCC 556 Sarva Uttar Pradesh Gramin Bank Vs. Manoj Kumar Sinha. Relevant paragraph 37 is as under:
"37. Thereafter, this Court notices the development of the principle that prejudice must be proved and not presumed even in cases where procedural requirement have not been complied with. The Court notices a number of judgements in which the action has not been held ipso facto illegal, unlawful or void unless it is shown that non-observance had prejudicially affected the applicant. Ultimately, it is concluded as follows:(Haryana Financial Corpn. Case, SCC p. 44. para.44) "44. From the aforesaid decisions, it is clear that though supply of report of the inquiry officer is part and parcel of natural justice and must be furnished to the delinquent employee, failure to do so would not automatically result in quashing or setting aside of the order or the order being declared null and void. For that, the delinquent employee has to show 'prejudice'. Unless he is able to show that non-supply of report of the inquiry officer has resulted in prejudice or miscarriage of justice, an order of punishment cannot be held to be vitiated. And whether prejudice had been caused to the delinquent employee depends upon the facts and circumstances of each case and no rule of universal application can be laid down."
In view of the foregoing discussion and fact of the case the decision taken by the respondent authorities cannot be faulted with and does not call for interference in the writ proceeding.
The writ petition is accordingly dismissed.
16.1.2012 Aks.