Allahabad High Court
Babu Ram S/O Kalu Ram vs State Of U.P. Through The Principal ... on 12 March, 2007
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
JUDGMENT Sudhir Agarwal, J.
1. Both the writ petitions are connected involving common question of fact and law and thus as requested by learned Counsel for the parties have been heard together and are being decided by this common judgment.
2. The reliefs sought in these writ petitions are to quash the inquiry report dated 14.12.2001, the order of dismissal dated 6.7.2000 passed by the respondent No. 2 i.e. Senior Superintendent of Police, Saharanpur, appellate order dated 23.11.2002 passed by the Deputy Inspector General of Police, Saharanpur Range i.e. the respondent No. 3 and revisional order dated 2.12.2003 passed by respondent No. 4, i.e., Inspector General of Police, Meerut Zone, Meerut. A writ of mandamus has also been sought by the petitioners directing the respondents to treat them in continuous service since the date of dismissal and pay arrears of salary and other benefits.
3. The necessary facts giving rise to these petitions are that both the petitioners were enrolled as Constable in U.P. Police Force and were assigned duty to transport a prisoner, Rashid from Saharanpur Jail to Court of Metropolitan Magistrate, Tis Hazari, New Delhi on 27.4.2001. After producing the said prisoner in the trial court, the petitioners were bringing him back and boarded Chhattisgarh Express in the night of 28.4.2001 for onward journey from New Delhi to Saharanpur. In the midnight, near Deoband, the said prisoner escaped from the custody of the petitioners. They lodged a report on 29.4.2001 at about 1.30 p.m. At P.S. Deoband. The petitioners were proceeded departmentally by issuing charge sheet containing only one charge that they were guilty of gross dereliction of duty and negligence on account whereof the prisoner, Rashid escaped from their custody on 27.4.2001. The oral inquiry was conducted by, Sri Pushpak Jyoti, Superintendent of Police (Rural), Saharanpur who submitted his report dated 14.12.2001 holding them guilty and recommending punishment of reduction at the bottom of the pay scale for a period of three years. The Senior Superintendent of Police, Saharanpur issued a show cause notice dated 28.5.2002 wherein agreeing with the finding of the inquiry officer that the petitioners were guilty of gross negligence, he proposed the punishment of dismissal. The petitioners submitted their reply dated 15.6.2002 whereafter the disciplinary authority i.e. the respondent No. 2 passed the punishment order of dismissal dated 6.7.2002. The appeal preferred by the petitioners was dismissed by the respondent No. 3 and revision was rejected by the respondent No. 4 whereagainst these writ petitions have been filed.
4. The respondents have filed counter affidavit in Writ Petition No. 15730 of 2004 wherein the facts relating to departmental inquiry are not disputed but the contention of the petitioners that they rendered an unblemished service carrier has been disputed and in respect to the petitioner, Subhash Chandra it has been stated that he was awarded various punishments namely fine of Rs. 500/- in 1993, censure entry in 1994 and 14 minor punishments in various years between 1990 to 2001. It is also stated that after escape of the prisoner, Rashid from the custody of the petitioners they were placed under suspension and thereafter the disciplinary proceedings were conducted.
5. Rejoinder affidavit has been filed in the Writ Petition No. 15730 of 2004 wherein the facts stated in the writ petition have been reiterated.
6. Sri Rakesh Pandey, learned Counsel appearing for the petitioners requested that since the facts and issues involved in both the writ petitions are common, on the basis of the pleadings in Writ Petition No. 15727 of 2004 both the matter may be heard and it is agreed by the learned Standing Counsel. Thus with the consent of learned Counsel for the parties I have heard both the petitions together and deciding the same.
7. Sri Rakesh Pandey, learned Counsel for the petitioners arguing at length assailing the orders impugned in the writ petition mainly submits as under:
1. No opportunity of cross-examination of the witnesses produced on behalf of the department in support of the charges was allowed by the inquiry officer and he has wrongly mentioned that the petitioners declined to cross-examine the said witnesses, hence the entire proceedings are in utter violation of principle of natural justice.
2. Inquiry officer proposed the punishment of reduction at the lowest in the pay scale for a period of three years but without disagreeing thereto the disciplinary authority has imposed punishment of dismissal which is illegal and vitiated in law inasmuch as without disagreeing with the finding of the inquiry officer and that too after recording reasons the disciplinary authority could not have imposed a higher punishment.
3. The inquiry officer has disbelieved the version of the petitioners without recording any reasons and therefore the inquiry report being unreasoned and non-speaking one could not have been relied for holding the petitioners guilty. The punishment order passed pursuant to the said inquiry report is thus vitiated in law.
4. Though the charge levelled against the petitioners was not so serious yet the maximum punishment of dismissal has been imposed which is ex-facie arbitrary, excessive and harsh, hence violative of Article 16(1) of the Constitution of India.
8. The learned Standing Counsel on the contrary submitted that the proceedings have been conducted fairly after giving adequate opportunity of defence to the petitioners. Further after observing the procedure laid down under the Rules, the orders impugned in the writ petition have been passed by the competent authorities, hence no interference is called for in these writ petitions.
9. I have heard learned Counsel for the parties and perused the record as well as the authorities cited by the respective parties.
10. Before dealing with the submissions advanced by learned Counsel for the petitioners it would be necessary to bear in mind that the nature of the charge, the duties and responsibilities of the petitioners have to be considered in the light of the fact that they being members of a police force were responsible for maintaining law and order, safety and security to the people at large. While discharging their duty of escorting a criminal from jail to the Court, the petitioners were expected to show alertness and wisdom with regard to the safe custody of the prisoner of the highest level, non-comparable with a common man since the petitioners primary duty was to remain alert and take adequate precaution throughout and at every moment while on duty so that no criminal activity successfully could have been committed by anyone. Moreover, the judicial review disciplinary proceedings proceed in a narrow sphere and is confined to the extent of finding error, if any, in the decision making process and not to appreciate the decision itself unless it is found to be vitiated in law on account of mala fide, bias or based on no evidence at all. The authorities exercising quasi judicial functions are not courts and hence not bound by strict rules of evidence.
11. A Constitution Bench in the case of State of Mysore v. Shivabasappa , in para 3 of the judgment held as under:
Tribunals exercising quasi judicial functions are not Courts and that therefore they are not bound to follow the procedure prescribed for trial of actions in Courts nor are they bound by strict rules of evidence. They can, unlike Courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in Court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against whom it is to be used and give him a fair opportunity to explain it.
12. In the matter of departmental enquiry, the scope of judicial review, has been considered by the Apex Court in State of Andhra Pradesh v. Sree Rama Rao , and in para 7 it has held as under:
There is no warrant for the view expressed by the High Court that in considering whether a public officer is guilty of the misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court, must be applied, and if that rule be not applied, the High Court in a petition under Article 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not constituted in a proceeding under Article 226 of the Constitution is competent to declare the order of the authorities holding a departmental enquiry invalid. 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 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 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. The High Court may undoubtedly 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 fact of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds, But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be 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 of the Constitution, (emphasis added)
13. In Bareilly Electricity Supply Company Ltd. v. Workmen and Ors. , the Apex Court held that the procedure prescribed in the Evidence Act is not applicable in the departmental proceedings and the only requirement is that the evidence should be collected by giving due opportunity to the delinquent employee as well. Something, which is not a legal evidence may not be acted upon unless it is admitted in the departmental proceedings by the person competent to spoke about them and is subjected to cross-examination. The relevant observations are as under:
But the application of principal of natural justice does not imply that what is not evidence can be acted upon. On the other hand what it means is that no material can be relied upon to establish a contested fact which are not spoken to by persons who are competent to speak about them and are subjected to cross-examination by the party against whom they are sought to be used.
14. In State of Haryana v. Rattan Singh , certain passengers were found to have travelled alighted the bus without tickets as a result whereof the employee, who was the Conductor of the bus, was charge sheeted. The employer on the basis of the statements of the Flying Squad held the charge proved. The employee challenged the order of punishment on the ground that the passengers said to have travelled without ticket were not examined and in the absence thereof the entire evidence is hear-se. The Apex Court rejecting such contention held as under:
It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind and are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The 'residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halbsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence-not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record, (emphasis added)
15. In B.C. Chaturvedi v. Union of India , reiterating the principles of judicial review in disciplinary proceedings, the Apex Court held in para 12 as under:
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 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.
16. In R.S. Saini v. State of Punjab the Apex Court held that the standard of proof required in disciplinary proceedings is that of preponderance of probability where there are some relevant material which the authority has accepted and which material may reasonably support the conclusion that the officer is guilty. It is not the function of the High Court to review the material and to arrive at its own independent finding. It also held if the enquiry has been properly held, the question of adequacy or reliability of the evidence cannot be canvassed before the Court. This is followed in Lalit Popli v. Canara Bank and Ors. .
17. This view has been followed by the Apex Court in High Court of Judicature at Bombay v. Shashikant S. Patil , wherein it has been held as under:
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 inquiry 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 inquiry 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 reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed before Article 226 of the Constitution.
18. In Syed Rahimuddin v. Director General AIR 2001 (9) SCC 575, the Apex Court observed as under:
It is well settled that a conclusion or a finding of fact arrived at in a disciplinary enquiry can be interfered with by the court only when there are no materials for the said conclusion, or that on the materials, the conclusion cannot be that of a reasonable man.
19. In Sher Bahadur v. Union of India , the orders of punishment was challenged on the ground of lack of sufficiency of the evidence. The Apex Court explained that the expression "sufficiency of evidence" postulates "existence of some evidence" which links the charged officer with the misconduct alleged against him and it is not the "adequacy of the evidence".
20. Recently, in Government of Andhra Pradesh v. Mohd. Nasrullah Khan, Judgment Today 2006 (2) SC 82, the Apex Court has reiterated the scope of judicial review as confined to correct the errors of law or procedural error if results in manifest miscarriage and justice or violation of principles of natural justice. In para 7, the Hon'ble Court has held:
By now it is a well established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an Appellate Authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error if any resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by appreciating the evidence as an Appellate Authority.
21. In Special Appeal No. 1280 of 2005 Sarvesh Kumar Sharma v. Nuclear Power Corporation of India Ltd. and Anr. decided on 20.2.2006 a Division Bench (of which 1 was a member) after having retrospect of various cases on this issue has formulated certain general principles of law emerging from the said decision as under:
(1) The Tribunal exercising quasi judicial functions neither bound to follow the procedure prescribed for trial of actions in Courts nor bound by the strict rules of evidence.
(2) They may obtain all information material for the points under enquiry and act upon the same provided it is brought to the notice of the party and fair opportunity is afforded to explain.
(3) The judicial enquiry is to determine whether the authority holding enquiry is competent, and whether the procedure prescribed is in accordance with the principle of natural justice.
(4) There should exist some evidence accepted by the competent authority which may reasonably support the contention about the guilt of the officer. Adequacy or reliability of the evidence can not be looked into by the Court.
(5) The departmental authorities are the sole judges of facts and if there be 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 Court.
(6) There is no allergy to hear-se evidence provided it has reasonable nexus and credibility. All materials which are logically probative for a prudent mind are permissible.
(7) The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice.
(8) It is not necessary that the Disciplinary authority should discuss material in detail and contest the conclusions of the Inquiry Office.
(9) The judicial review is extended only when there is no evidence or the conclusion or finding be such as no reasonable person would have ever reached on the basis of the material available.
22. Now this Court has to consider the facts of this case in the light of legal exposition of law as discussed above. The facts borne out from the record and the pleadings of the parties are that the petitioners at the relevant time were posted at Police Line, Saharanpur. They were assigned the duty of transporting a notorious undertrial accused, Rashid from District Jail, Saharanpur to Tis Hazari Court, Delhi on 27.4.2001. While coming back at about 12.30, in the night of 28.4.2001, near Deoband, the said accused jumped out from the running train alongwith handcuffs and rope at a place which was 10-15 k.m. from Deoband. The escape of the said accused from the custody of the petitioner is not disputed. In the reply submitted by the petitioners they have admitted that the said accused escaped from their custody. However, the circumstances in which he got escaped sought to be explained by them submitting that at about 12.30 p.m., he desired to attend his call of nature and both the petitioners while carrying him to the toilet in the train compartment, when reached near the door, he pushed Constable, Baburam who fell upon constable, Subhash Chandra who was behind the former and at that moment the accused ran away by jumping out from the compartment of the train. Since it was mid night and there was dark, they tried to shot him but since nothing was visible outside the running train, they could not open fire. The train stopped at about 12.45 at Deoband railway station where both petitioners got down and thereafter came back to the place where the said accused has escaped and tried to search him out for whole of the night but could not find any clue and ultimately on the next date i.e. 29.4.2001 at about 1.30 p.m. lodged report at Police Station Deoband. Therefore, it is not a case where the allegation made against the petitioners that on account of their dereliction of duty and gross negligence a notorious undertrial prisoner escaped from their custody is a fact which is disputed by them but the only scope for inquiry was whether the petitioners took such precautions as expected from a trained police personnel escorting under-trial prisoner and therefore whether they were guilty of gross negligence and dereliction of duty or not. The petitioners thus having admitted the escape of the prisoner from their custody, there was no occasion for the department thereafter to prove the charge any further as such but the onus thereafter shifted upon the petitioners to show that undertrial prisoner did not escape on account of their gross negligence and dereliction of duty but they took all possible precautionary steps which ought to have been taken by a person well trained to discharge similar kind of duty, yet the under-trial escaped and thus it was not a case where the incident took place on account of gross negligence or dereliction of duty on the part of the petitioners. The petitioners except of submitting their reply and stating the facts as I have already narrated above, did not produce any other material on record to show that they took all possible precautionary steps as expected from them while discharging the said duty. The three out of five witnesses produced by the department in the oral inquiry mainly sought to prove the fact that the petitioners were assigned with the duty of escorting an undertrial prisoner from Saharanpur Jail to Tis Hazari Court, New Delhi and from their custody the said undertrial prisoner ran way. The fourth witness namely, Arun Kumar Sirohi, the then Inspector proved his report dated 30.4.2001 which was in respect of the said incident which he reported to the higher authorities. The last witness namely, Baburam, Circle Officer, sought to prove his preliminary inquiry report. He sought to find out whether the petitioners were prima facie guilty of dereliction of duty and gross negligence. After receiving the chargesheet, since the incident was admitted by the petitioners themselves in their own reply and they did not dispute that fact, it is understandable that they did not find any reason to cross examine the aforesaid witnesses. The only aspect which thereafter has to be considered is whether the petitioners were guilty of gross negligence and dereliction of duty. For the said purpose onus lie on the petitioners and they had to show by proper explanation and evidence, if any, that they took all possible precautionary steps which were expected from a well trained person assigned the aforesaid kind of duty. Since the petitioners did not provide any such kind of explanation and no material placed to prove it, the inquiry officer therefore, did not commit any error in holding them guilty and I do not find any fault in the manner he has conducted inquiry and submitted his report.
23. A person holding a Civil post is entitled for an adequate opportunity of defence in the departmental inquiry. An inquiry has to be thus conducted in accordance with the well known principle of audi alterm partem. However, the principles of natural justice are not unruly horse and cannot be placed in a straight jacket formula. The manner in which the principles of natural justice have to be observed depends upon the facts and circumstances of each case. There cannot be a technical observance of the principle of natural justice in a particular manner unless it can be shown that non observance of some procedural step has caused serious prejudice to the delinquent employee. The facts of the case in hand neither show that mere non cross-examination of the witnesses by the petitioners did cause any prejudice to them nor any has been pleaded at all. The inquiry officer has clearly observed that the petitioners did not intend to examine or cross-examine any witness and a copy of the hand written letter dated 29.11.2001 submitted by one of the petitioner, Subhash Chandra has also been filed as Annexure-1 to the counter affidavit which clearly mentions that he declined to examine or cross-examine any witness. Hence, I do not find any substance in the submission of the petitioners that the proceedings are vitiated in law since they were not allowed cross-examination of the witnesses produced by the department.
24. It is interesting to notice that in reply to para 7 of the counter affidavit wherein the letter of one of the petitioners has been referred to and annexed as Annexure-CA-1 to the counter affidavit, in the rejoinder affidavit the said petitioner has averred that the document is not in his handwriting though contains his signature which has been obtained by the inquiry officer by manipulation. I do not find any pleading that the inquiry officer obtained signature of the petitioners on certain documents which were not written by them and they made any complaint thereof to any higher authority immediately at that time or within a reasonable time thereafter. Further, from the reply dated 15.6.2002 submitted by the petitioners pursuant to the show cause notice issued by the disciplinary authority after receiving inquiry report, I do not find any such complaint that they were denied adequate opportunity of defence by not permitting examination or cross-examination of the witnesses produced by the department or that the inquiry officer obtained their signature on certain papers by manipulation. Even in the memo of appeal dated 16.8.202 submitted to the Deputy Inspector General of Police no such grievance has been raised. In the circumstances, it appears that this plea for the first time has been raised in this writ petition only though without any factual foundation and therefore I am not inclined to agree with the submission of the learned Counsel for the petitioner that the inquiry is vitiated in law on this account. Hence the aforesaid submission is rejected.
25. Now coming to the next submission that the disciplinary authority without disagreeing with the finding of the inquiry officer has imposed punishment of dismissal which was not recommended by the inquiry officer and therefore it is vitiated in law, I am of the view that it is also unsustainable and has to be rejected. Admittedly, the procedure for departmental inquiry in respect to the police officers of subordinate rank has been provided in U.P. Police Officers of the Subordinate Ranks (Punishment and Appeal) Rules, 1991 (hereinafter referred to as the "1991 Rules"). The manner in which the inquiry officer shall submit his report has been stated in appendix read with Rule 14(1) which provides as under:
The proceedings shall contain a sufficient record of the evidence and statement of the findings and the ground thereof. The Inquiry Officer may also separately from these proceedings make his own recommendation regarding the punishment to be imposed on the charged police officer.
26. Punishment may be awarded for good and sufficient reasons as provided under Rule 4 which include major penalties like, removal and reduction of rank including reduction to a lower-scale or to a lower stage in a time scale. Rule 8 however deals with dismissal and removal and it would be relevant to refer Sub-rule 4(a) of Rule 8 of 1991 Rule as under:
(4)(a) The punishment for intentionally or negligently allowing a person in police custody or judicial custody to escape shall be dismissal unless the punishing authority for reasons to be recorded in writing awards a lesser punishment.
27. It is not disputed that the Senior Superintendent of Police was the authority competent to impose the penalty of dismissal or removal. It was therefore, under an obligation to impose the punishment and dismissal where a police officer of subordinate rank is found guilty of allowing a person to escape from police custody intentionally or negligently and in order to award a lesser punishment it has to record reasons in writing. The disciplinary authority after receiving the inquiry report has recorded a concurrent finding with the inquiry officer that the petitioners were guilty of negligence for the escape of undertrial prisoner from their custody. Only these findings and conclusion of the inquiry officer's report has been concurred by him as is apparent from the following:
foHkkxh; dk;Zokgh ihBklhu vf/kdkjh Jh iq"id T;ksfr] vij iqfyl v/kh{kd ¼xzkeh.k½ }kjk lEikfnr dh x;h ftlesa vkidks drZO;ikyu esa ykijokgh dk nks"kh ik;k x;k D;ksfd is'kh ds mijkUr okil ykSVrs le; mDr vfHkqDr vkidh vfHkj{kk ls gFkdM+h o jLls lfgr Vsªu ls dwn dj Hkkx x;k A vfHk;qDr jkf'kn ds iqfyl vfHkj{kk ls Hkkx tkus ds lEcU/k es iw.kZRk% vkidh ykijokgh fl) gS ,oa blds fy, vki iw.kZr% nks"kh gS A
28. Thereafter he issued a show cause notice affording an opportunity to the petitioners to show cause as to why they should not be dismissed from service by referring to Sub-rule 4(1 )(a) of Rule 8 of 1991 Rules. This part of the show cause notice sent by the S.S.P. Saharanpur itself shows his disagreement in respect to the quantum of punishment recommended by the inquiry officer and gave opportunity to the petitioner to submit his explanation. When the disciplinary authority referred to the relevant statutory provision which requires imposition of penalty of dismissal in a matter where charge of escape of a person from police custody on account of negligence of police officer of subordinate rank found proved reference to the rule itself amounts reason for disagreeing with the recommendation of the inquiry officer with respect to punishment and it was not necessary for the disciplinary authority to give more detailed reasons like a judgement. The petitioners in their reply have reiterated the story which they submitted in reply after receiving the charge sheet and there is no difference in the version. From the reply of the petitioners it is evident that they did not exercise their due caution and precaution expected from a person of ordinary prudence working in a police force and assigned with the aforesaid kind of duty. Both the petitioners have said that the undertrial prisoner forcibly pushed Baburam who fell on Subhash Chandra, another petitioner, and in the mean time he jumped out from the running train and ran away. This shows that the accused was walking in front and both the petitioners were behind him. In normal course two constables are assigned duty when an undertrial prisoner is sent to attend the court and both the constables should move by keeping undertrial prisoner in the middle. Had this normal precaution been taken by the petitioners, even if one of the constable would have been pushed away, the situation as tried to be explained by the petitioners would not have arisen. Further they have said that the incident took place in the mid night at about 12.30 p.m. It is not their case that before allowing the undertrail prisoner to attend his call of nature the door of the train compartment was ensured as locked by them. Had it been observed, the accused person would not have been able to get enough time facilitating his easy and uninterrupted escape. The next reason but not the least is that there is no explanation of the petitioners that they tried to stop the train immediately when undertrial prisoner jumped out of the running train and on the contrary they did not take any further action for about 15 minutes and the train travelled about 10-15 k.m. and when it reached Deoband Station, then the petitioners came down and came back to the place where the said prisoner has escaped. In substance, it cannot be said that the authorities acted arbitrarily recording a finding of fact which can be said to be perverse. Moreover the disciplinary, appellate and revisional authorities are the Senior Police Officers and are well versed with the kind of the activities as were involved in the case in hand and could have very well assessed the fact as to whether a member of the disciplined force has shown negligence and it is not an error of judgement or an act which has occurred despite due diligence and bonafide action of the concerned person. Hence in my view it cannot be said that the disciplinary authority in any manner erred in law by issuing show cause notice proposing punishment of dismissal and ultimately in imposing the said punishment and the same is not vitiated in law merely for the reason that it was a severe punishment different from that proposed by the inquiry officer.
29. Coming to the third submission that the inquiry report is unreasoned and non-speaking, I do not find any force in the submission and the same is rejected outright. Since the incident was admitted by the petitioners and they could not explain or give any satisfactory explanation to show that they took all possible precautionary steps which were expected from them while escorting a person in police custody, inquiry officer has rightly observed that the the escape of undertrial prisoner from the custody of the petitioner show their dereliction of duty and gross negligence. The disciplinary authority on the basis of the material on record has also given detailed reasons as is apparent from the show cause notice, the relevant whereof is reproduced as under:
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30. The same reason has been reiterated in the dismissal order passed by the disciplinary authority. Moreover all these aspects have also been considered by the appellate and the revisional authority in their detailed and well reasoned orders and being concurrent finding of fact which has not been shown perverse, do not warrant any interference under Article 226 of the Constitution of India.
31. Coming to the last submission that the punishment imposed is higher, excessive and grossly disproportionate to the gravity of the charge, I find the same also unsustainable. In their own assessment, the petitioners might have thought that escape of an undertrial prisoner from police custody is not a serious charge but where such escape shows negligence of a police officer of subordinate rank, it is a serious lapse. Even the rule framing authority has treated it to be a very serious charge for which it has specifically provided that punishment of dismissal shall be imposed and if the punishing authority intends a lesser punishment, it has to record reasons. The Court cannot loose sight of the wide spread criminal activities and day to day news of running away of criminals or undertrial prisoners from police custody. Obviously it is a serious matter and needs to be dealt with an iron hand. It directly affects the public peace and tranquillity and is a matter relating to law and order. Escape of an undertrial prisoner who is being tried for serious offences causes drastic repercussions to the public safety and peace at large. Moreover in order to maintain discipline and alertness to the duty in a uniformed service, all time alertness while on duty is a matter of highest concern and once the charge is found proved, what punishment should be imposed to the member of uniformed service must be left to the discretion of the competent authority, since he is in a better position to understand the pros and cons of his action or inaction, unless it can be shown that the decision taken by the competent authority is such that no person of ordinary prudence would have ever taken such decision. In other words, the petitioners have to show that the decision is perverse and ex-facie arbitrary. The scope of judicial review in the matter of quantum of punishment, once the charge is proved against a delinquent employee is very limited. The court will not sit over such a decision like an appellate authority to consider as to whether any other punishment would have been better or not.
32. The scope of judicial interference in the matter of punishment is very limited. Of course earlier the Apex Court in the case of Bhagat Ram v. State of Himanchal Pradesh interfered with the punishment on the ground that it was not commensurate to the gravity of the charges but thereafter in the case of Union of India v. G. Nanayutham the Apex Court after a thorough review of the entire case law on the doctrine of proportionality laid down the following proposition in para-28 of the judgment:
The current position of proportionality in administrative law in England and India can be summarized as follows:
(1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to find out if the decision was illegal or suffered from procedural improprieties or was one which no sensible decision maker could, on the material before him and within the framework of the law, have arrived at. The Court would consider whether relevant matters had not been taken into account or whether irrelevant matters had been taken into account or whether the action was not bonafide. The Court would also consider whether the decision was absurd or perverse. The Court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor could the Court substitute its decision to that of the administrator, This is the Wednesbury test.
(2) The Court would not interfere with the administrator's decision unless sit was illegal or suffered from procedural impropriety or as irrational in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English Administrative Law in future is not ruled out. These are the CCSU principles.
(3) (a) As per Bugdaycay, Brind and Smith, as long as the Convention is not incorporated into English Law, the English Courts merely exercise a secondary judgment to find out if the decision maker could have, on the material before him, arrived at the primary judgment in the manner he has done.
(3) (b)If the Convention is incorporated in England making available the principle of proportionality, then the English Courts will render primary judgment on the validity of the administrative action and find out if the restriction is disproportionate or excessive or is not based upon a fair balancing of the fundamental freedom and the need for the restriction thereupon.
(4)(a) The position in our country, in administrative law, where no fundamental freedoms as aforesaid are involved, is that the Courts/ Tribunals will only play a secondary role while the primary judgment as to reasonableness will remain with the executive or administrative authority. The secondary judgment of the Court is to be based on Wednesbury and CCSU principles as stated by Lord Greene and Lord Diplock respectively to find if the executive or administrative authority has reasonably arrived at his decision as the primary authority.
(4) (b) Whether in the case of administrative or executive action affecting fundamental freedoms, the Courts in our country will apply the principle of "proportionality" and assume a primary role, is left open, to be decided in an appropriate case where such action is alleged to offend fundamental freedoms. It ill be then necessary to decide whether the Court will have a primary role only if the freedoms under Articles 19, 21 etc. are involved and not for Article 14.
33. A three Judges Bench of the Apex Court in B.C. Chaturvedi v. Union of India 1996(1) UPLBC 680 held that even though the High Court or the Tribunal while exercising the power of judicial review cannot normally substitute its own conclusion on penalty and impose some other penalty. If they found that the punishment imposed by the disciplinary authority is so irrational and disproportionate to the gravity of the charge and it shocks the conscious of the High Court or the Tribunal, it would be prudent to direct the authority concerned to reconsider the penalty or in exceptional and rare cases to shorten the litigation it may itself impose appropriate punishment for reasons in support thereof.
34. In Dev Singh v. State of Punjab Tourism Development Limited . the Apex Court in para-6. held as under:
A perusal of the above judgments clearly shows that a court sitting in appeal against a punishment imposed in the disciplinary proceedings will not normally substitute its own conclusion on penalty, however, if the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court, then the court would appropriately mould the relief either by directing the disciplinary/appropriate authority to reconsider the penalty imposed or to shorten the litigation it may make an exception in rare cases and impose appropriate punishment with cogent reasons in support thereof, It is also clear from the above noted judgments of this Court, if the punishment imposed by the disciplinary authority is totally disproportionate to the misconduct proved against the delinquent officer, then the court would interfere in such a case.
35. In the case of Regional Manager, UPSRTC v. Hoti Lal the Apex Court in para-10 summarized its view as follows:
It needs to be emphasized that the court or tribunal while dealing with the quantum of punishment has to record reasons as to why it is felt that the punishment does not commensurate with the proved charges. As has been highlighted in several cases to which reference has been made above, the scope for interference is very limited and restricted to exceptional cases in the indicated circumstances. Unfortunately, in the present case as the quoted extracts of the High Court's order would go to show, no reasons whatsoever have been indicated as to why the punishment was considered disproportionate. Reasons are live links between the mind of the decision taker to the controversy in question and the decision or conclusion arrived at. Failure to give reasons amounts to denial of justice. (See Alexander machinery Dudley Ltd. v. Crabtree 1974 LCR 120 A mere statement that it is disproportionate would not suffice, A party appearing before a court, as to what it, is that the court is addressing its mind. It is not only the amount involved but the mental set up, the type of duty performed and similar relevant circumstances which go into the decision-making process while considering whether the punishment is proportionate or disproportionate. If the charged employee holds a position of trust where honesty and integrity are inbuilt requirements of functioning, it would not be proper to deal with the matter leniently. Misconduct in such cases has to be dealt with iron hands. Where the person deals with public money or is engaged in financial transactions or acts in a fiduciary capacity, highest degree of integrity and trust worthiness is must and unexceptionable. Judged in that background, conclusions of the division bench of the High Court do not appear to be proper. We set aside the same and restore order of learned single judge upholding order of dismissal.
36. Similar is the view taken in another judgment Chairman and Managing Director, United Commercial Bank and Ors. v. P.C. Kakkar where the Apex Court held as under:
The court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury 's case (Supra) the court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute is decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision making process and not the decision Unless the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the court/ tribunal, there is no scope for interference. Further to certain litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it would be appropriate to direct the disciplinary authority or the appellate authority to reconsider the penalty imposed.
In the case at hand the High Court did not record any reason as to how and why it found the punishment shockingly disproportionate. Even there is no discussion on this aspect. The only discernible reason was the punishment awarded in M.L. Keshwani's case. As was observed by this Court in Balbir Chand v. Food Corporation of India Ltd. and Ors. , even if a co-delinquent is given lesser punishment it cannot be a ground for interference, Even such a plea was not available to be given credence as the allegations were contextually different.
A Bank officer is required to exercise higher standards of honesty and integrity. He deals with money of the depositors and the customers. Every officer/ employee of the bank is required to take all possible steps to protect the interests of the bank and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a bank officer. Good conduct and discipline are inseparable from the functioning of every officer/ employee of the bank.
It needs no emphasis that when a court feels that the punishment is shockingly disproportionate, it must record reasons for coming to such a conclusion. Mere expression that the punishment is shockingly disproportionate would not meet the requirement of law.
In the peculiar circumstance of the case, it would be appropriate to send the matter back to the High Court for fresh consideration. The High Court shall only consider the punishment aspect, treating all other matters to be closed and to have become final.
37. Thus the law is well settled that the court has to see only whether the punishment is such which a person of ordinary prudence in the given facts and circumstances would not have imposed on the material and facts and circumstances of the case and whether the view taken by the competent authority is possible one. The court will not interfere only for the reason that another view would have been better.
38. In view of the aforesaid discussion and considering all the facts and circumstances of the case I do not find any merit in the writ petitions and in my view, these are not fit cases warranting any interference in the extra-ordinary jurisdiction under Article 226 of the Constitution of India. The writ petitions lack merit and are dismissed. No order as to costs.