Jharkhand High Court
Mohd. Islam Ansari vs Director (Personnel) on 31 August, 2022
Author: Deepak Roshan
Bench: Deepak Roshan
IN THE HIGH COURT OF JHARKHAND AT RANCHI
W.P.(S) No.5370 of 2015
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Mohd. Islam Ansari ..... Petitioner
Versus
1. Director (Personnel), Central Coalfields Limited, Darbhanga House, Ranchi
2. General Manager, Central Coalfields Limited, Darbhanga House, Ranchi
3. General Manager, Central Coalfields Limited, Kathara Washery, Bokaro
4. Project Officer, Amlo Project, Central Coalfields Limited, Amlo Project, District Bokaro ..... Respondents
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CORAM: HON'BLE MR. JUSTICE DEEPAK ROSHAN
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For the Petitioner : Mr. Rajiv Ranjan, Sr.Advocate
Mr. Piyush Chitresh, Advocate
For the Respondents : Mr. A.K. Das, Advocate
Ms. Swati Shalini, Advocate
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26/31.08.2022 The instant writ petition has been preferred by the
petitioner praying therein for quashing and setting aside of the order dated 09.06.2015; whereby the petitioner has been dismissed from his service and also for quashing of the order dated 05.08.2015 passed by the appellate authority, whereby the order of dismissal of the petitioner has been sustained.
2. The brief facts of the case lie in a narrow compass. The petitioner was appointed to the post of L.D.C. Grade-I on 27/28.02.2011. His primary work involved looking after job of Road Sales of slurry and rejects and secondary work involved daily rated establishment section.
While the petitioner was posted at Kathara Washery, on 04.07.20173 a charge sheet was issued upon him alleging therein that he was engaged in un-accounted lifting and sale of by-products from Kathara Washery and allowed for dispatch of unbilled quantity which led to financial loss to the respondents.
Pursuant thereto, the petitioner duly replied to the charges. Thereafter, enquiry proceeding was initiated. From records, it appears that the enquiry proceeding was held in altogether 18 sittings and on 20.09.2014, enquiry report was submitted before the disciplinary authority bringing all the charges alleged against the petitioner. Thereafter, the -2- disciplinary authority, vide order dated 29.10.2014 issued second show cause notice to which the petitioner duly replied vide his letter dated 19.11.2014. Thereafter, the disciplinary authority, after considering the reply filed by the petitioner to the second show cause, passed an order of dismissal vide order dated 09.06.2015. Thereafter, the petitioner preferred an appeal, however, even the appellate authority refrained from interfering with the order of dismissal.
3. Mr. Rajiv Ranjan, learned Sr. Counsel for the petitioner, assisted by Mr. Piyush Chitresh, learned counsel assailed the impugned order of dismissal as well as the appellate order on following grounds.
(i) There is a delay in issuance of charge-sheet
against this petitioner.
(ii) The petitioner was given an additional charge of Clerk and his main job was to look after job of Road Sales of slurry and rejects. As such, dismissal of this petitioner for the work charge given on additional basis is not consistent in the eye of law.
(iii) The charge sheet is vague, inasmuch as, there is no specific allegation against this petitioner. However, he fairly submits that there was a rampant corruption but it cannot be said that petitioner was the only person involved in this case. As the petitioner was the junior most clerk, as such he did not have any decision-
making power in order to commit the fraud/so-called charge.
Learned sr. counsel lastly submits that at least the petitioner may be given a chance to file a mercy application before the disciplinary authority to reconsider the order of punishment on quantum.
4. Mr. A.K. Das, learned counsel for the C.C.L., assisted by Ms. Swati Shalini, opposed the prayer of the petitioner and submits that since there was a rampant corruption with regard to sale of by-product in Kathara Washery, there was a preliminary enquiry in order to ascertain -3- the facts and due to this reason, there was a delay in issuance of charge sheet as the management did not want to harass the general employees before coming to a primary conclusion with regard to the allegations and therefore, the charge sheet was issued on 04.07.2013.
Learned counsel further contended that even otherwise, the charge sheet in no way is a belated one. It is further submitted that the facts of the entire case itself shows that there is no procedural irregularities and principles of natural justice has been completely complied with. He further contends that under writ jurisdiction, this court cannot re appreciate the evidence and can entertain an application only if this court finds that there is some procedural error in the departmental proceeding or the order is perverse and both the ground are not available in this case.
Learned counsel further submits that this is also not a case in which the quantum of punishment is very harsh. He further draws attention of this court towards the supplementary counter affidavit filed on 02.08.2022 indicating therein that many other persons have also been dismissed from service and it is not that the petitioner, being a lower division clerk, has been made a scape goat.
Learned counsel for the respondents lastly submits that the petitioner may not be given a chance to file mercy petition for reconsideration as filing of representation/mercy application will only start another round of litigation and otherwise also there is no provision of mercy petition as per C.C.L. Rules.
5. Having heard learned counsel for the parties and after perusing the documents available on record and the averments made in the respective affidavits, it appears that in a very short span of employment of just two years petitioner indulged in illegal practices. From bare perusal of the enquiry report as well as the order of dismissal it clearly transpires that proper opportunity of hearing as well as adducing evidence has been provided to the petitioner and the -4- disciplinary authority has duly considered his contention made in the reply pursuant to second show cause notice and came to a definite conclusion that the petitioner is guilty of the charges alleged in the charge-sheet. As such, in no way it can be said that there is lacunae in the procedure so as to attract any intervention of this court.
It further transpires that the disciplinary authority since has considered the entire contention of the petitioner as well as the report of the enquiry officer and given a well- reasoned order with regard to dismissal of this petitioner, and in no way it can be said to be obstinate finding. From the appellate order it further transpires that even the appellate authority has considered the contention of the petitioner before it refrained from interfering with the order of dismissal.
6. It is a settled principle of service jurisprudence that sufficiency of evidence cannot be looked into in a judicial review. Reference in this regard may be made to the case of The State of Karnataka v. N. Gangaraj reported in (2020) 3 SCC 423, wherein the Hon'ble Apex Court at Paragraph 8 to 15 has held as under:
"8. We find that the interference in the order of punishment by the Tribunal as affirmed by the High Court suffers from patent error. The power of judicial review is confined to the decision-making process. The power of judicial review conferred on the constitutional court or on the Tribunal is not that of an appellate authority.
9. In State of A.P. v. S. Sree Rama Rao [State of A.P. v. S. Sree Rama Rao, AIR 1963 SC 1723] , a three-Judge Bench of this Court has held that the High Court is not a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant. It 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. The Court held as under : (AIR pp. 1726-27, para 7) "7. ... The High Court is not constituted in a proceeding under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant : it is concerned to determine whether the enquiry is held by an authority competent in that -5- behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. 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."
10. In B.C. Chaturvedi v. Union of India [B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 : 1996 SCC (L&S) 80] , again a three-Judge Bench of this Court has held that power of 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 eyes of the court. The court/tribunal in its power of judicial review does not act as an appellate authority to reappreciate the evidence and to arrive at its own independent findings on the evidence. It was held as under : (SCC pp. 759-60, paras 12-13) "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 the 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 reappreciate 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 -6- 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 reappreciate 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 [Union of India v. H.C. Goel, (1964) 4 SCR 718 : AIR 1964 SC 364] , this Court held at p. 728 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."
11. In High Court of Bombay v. Shashikant S. Patil [High Court of Bombay v. Shashikant S. Patil, (2000) 1 SCC 416 : 2000 SCC (L&S) 144] , this Court held that interference with the decision of departmental authorities is permitted if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry while exercising jurisdiction under Article 226 of the Constitution. It was held as under : (SCC p. 423, para
16) "16. The Division Bench [Shashikant S. Patil v. High Court of Bombay, 1998 SCC OnLine Bom 97 : (2000) 1 LLN 160] of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/disciplinary authority of the High Court. Interference with the decision of departmental authorities can be permitted, while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case, or if the conclusion made by the authority, on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the enquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even -7- reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution."
12. In State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya [State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya, (2011) 4 SCC 584 : (2011) 1 SCC (L&S) 721] , this Court held that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry 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 ground for interfering with the findings in departmental enquiries. The Court held as under : (SCC pp. 587-88, paras 7 & 10) "7. It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry 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 [B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 : 1996 SCC (L&S) 80] , Union of India v. G. Ganayutham [Union of India v. G. Ganayutham, (1997) 7 SCC 463 : 1997 SCC (L&S) 1806] and Bank of India v. Degala Suryanarayana [Bank of India v. Degala Suryanarayana, (1999) 5 SCC 762 : 1999 SCC (L&S) 1036] , High Court of Bombay v. Shashikant S. Patil [High Court of Bombay v. Shashikant S. Patil, (2000) 1 SCC 416 :
2000 SCC (L&S) 144] .) ***
10. The fact that the criminal court subsequently acquitted the respondent by giving him the benefit of doubt, will not in any way render a completed disciplinary proceeding invalid nor affect the validity of the finding of guilt -8- or consequential punishment. The standard of proof required in criminal proceedings being different from the standard of proof required in departmental enquiries, the same charges and evidence may lead to different results in the two proceedings, that is, finding of guilt in departmental proceedings and an acquittal by giving benefit of doubt in the criminal proceedings. This is more so when the departmental proceedings are more proximate to the incident, in point of time, when compared to the criminal proceedings. The findings by the criminal court will have no effect on previously concluded domestic enquiry. An employee who allows the findings in the enquiry and the punishment by the disciplinary authority to attain finality by non-challenge, cannot after several years, challenge the decision on the ground that subsequently, the criminal court has acquitted him."
13. In another judgment reported as Union of India v. P. Gunasekaran [Union of India v. P. Gunasekaran, (2015) 2 SCC 610 : (2015) 1 SCC (L&S) 554] , this Court held that while reappreciating evidence the High Court cannot act as an appellate authority in the disciplinary proceedings.
The Court held the parameters as to when the High Court shall not interfere in the disciplinary proceedings : (SCC p. 617, para 13) "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."
14. On the other hand the learned counsel for the respondent relies upon the judgment reported as Allahabad Bank v. Krishna Narayan Tewari [Allahabad Bank v. Krishna Narayan Tewari, (2017) 2 SCC 308 : (2017) 1 SCC (L&S) 335] , wherein this Court held that if the disciplinary authority records a finding that is not supported by any evidence whatsoever or a finding which is unreasonably arrived at, the writ court could interfere with the finding of the disciplinary proceedings. We do not find that even -9- on touchstone of that test, the Tribunal or the High Court could interfere with the findings recorded by the disciplinary authority. It is not the case of no evidence or that the findings are perverse. The finding that the respondent is guilty of misconduct has been interfered with only on the ground that there are discrepancies in the evidence of the Department. The discrepancies in the evidence will not make it a case of no evidence. The inquiry officer has appreciated the evidence and returned a finding that the respondent is guilty of misconduct.
15. The disciplinary authority agreed with the findings of the enquiry officer and had passed an order of punishment. An appeal before the State Government was also dismissed. Once the evidence has been accepted by the departmental authority, in exercise of power of judicial review, the Tribunal or the High Court could not interfere with the findings of facts recorded by reappreciating evidence as if the courts are the appellate authority. We may notice that the said judgment has not noticed the larger Bench judgments in S. Sree Rama Rao [State of A.P. v. S. Sree Rama Rao, AIR 1963 SC 1723] and B.C. Chaturvedi [B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749 : 1996 SCC (L&S) 80] as mentioned above. Therefore, the orders passed by the Tribunal and the High Court suffer from patent illegality and thus cannot be sustained in law."
7. In yet another judgment the Hon'ble Apex Court has reiterated the principle that judicial review is an evaluation of the decision making process, and not the merits of the decision itself and it seeks to ensure fairness in treatment and not fairness of conclusion. Reference can be made in this regard to Pravin Kumar v. Union of India reported in (2020) 9 SCC 471 : 2020 SCC OnLine SC 729 at page 479, wherein at Paragraph 25 to 30, the Hon'ble Apex Court has held as under.
"I. Scope of judicial review in service matters
25. The learned counsel for the appellant spent considerable time taking us through the various evidence on record with the intention of highlighting lacunae and contradictions. We feel that such an exercise was in vain, as the threshold of interference in the present proceedings is quite high. The power of judicial review discharged by constitutional courts under Article 226 or 32, or when sitting in appeal under Article 136, is distinct from the appellate power exercised by a departmental appellate authority. It would be gainsaid that judicial review is an evaluation of the decision-making process, and not the merits of the decision itself. Judicial review seeks to ensure fairness in treatment -10- and not fairness of conclusion. It ought to be used to correct manifest errors of law or procedure, which might result in significant injustice; or in case of bias or gross unreasonableness of outcome. [State of A.P. v. Mohd. Nasrullah Khan, (2006) 2 SCC 373, para 11 : 2006 SCC (L&S) 316]
26. These principles are succinctly elucidated by a three-Judge Bench of this Court in B.C. Chaturvedi v. Union of India [B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749, para 12 : 1996 SCC (L&S) 80] in the following extract:
(SCC pp. 759-60, paras 12-13) "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 concerned is 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 the 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 reappreciate 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 coextensive power to reappreciate 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 [Union of India v. H.C. Goel, (1964) 4 SCR 718 : AIR 1964 SC 364] this Court held at SCR pp. 728-29 that if the conclusion, upon consideration of the evidence reached by the disciplinary -11- 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."
27. These parameters have been consistently reiterated by this Court in a catena of decisions, including:
(i) State of T.N. v. S. Subramaniam [State of T.N. v. S. Subramaniam, (1996) 7 SCC 509 : 1996 SCC (L&S) 627] .
(ii) Lalit Popli v. Canara Bank [Lalit Popli v. Canara Bank, (2003) 3 SCC 583 :
2003 SCC (L&S) 353] .
(iii) H.P. SEB v. Mahesh Dahiya [H.P. SEB v. Mahesh Dahiya, (2017) 1 SCC 768 : (2017) 1 SCC (L&S) 297] .
28. It is thus well settled that the constitutional courts while exercising their powers of judicial review would not assume the role of an appellate authority. Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice. Put differently, judicial review is not analogous to venturing into the merits of a case like an appellate authority.
29. The High Court was thus rightly concerned more about the competence of the enquiry officer and adherence to natural justice, rather than verifying the appellant's guilt through documents and statements. It clearly noted that evidence was led, cross-examination was conducted and opportunities of addressing arguments, raising objections, and filing appeal were granted. The conclusion obtained was based upon these very evidence and was detailed and well-reasoned. Furthermore, the High Court did not restrict the scope of judicial review, rather adopted a liberal approach, and delved further to come to its own independent conclusion of guilt. Similarly, we have no doubt in our minds that the appellate authority had carefully dealt with each plea raised by the appellant in his appeal and had given detailed responses to all the contentions to satisfy the appellant's mind. The disciplinary authority too was impeccable and no infirmity can be found in the report of the enquiry officer either.
30. Even in general parlance, where an appellate or reviewing court/authority comes to a different conclusion, ordinarily the decision under appeal ought not to be disturbed insofar as it remains plausible or is not found ailing with perversity. The present case is neither one where there is no evidence, nor is it one where we can arrive at a different conclusion than the disciplinary authority, especially for the reasons stated hereunder."
After going through the aforesaid judgments and looking to the overall facts and circumstances of the case this -12- court refrains from interfering with the impugned order of dismissal.
8. Now, coming to the question of quantum punishment, this court feels that even on the quantum of punishment the impugned order does not need any interference, inasmuch as, the supplementary counter affidavit filed by the respondent C.C.L. clearly transpires that many lower division clerks have been dismissed along with Deputy Manager, Project Officer etc. in connection with the same occurrence. Even otherwise, from bare perusal of the enquiry report as well as the impugned order, it cannot be said that the punishment which has been awarded by the respondent C.C.L. is of such nature which can shock the conscience of this court. As such, even on the quantum of punishment, this court refrains from interfering with the order of dismissal.
9. In view of the aforesaid discussion and judicial pronouncements referred to hereinabove, the instant application is dismissed on contest. However, there is no order as to cost.
(Deepak Roshan, J.) sm/