Himachal Pradesh High Court
Manoj Kumar Bansal vs Khazan Sing [Case No.29-1 Of 2005 on 9 September, 2021
Bench: Ravi Malimath, Jyotsna Rewal Dua
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
ON THE 9th DAY OF SEPTEMBER 2021
BEFORE
.
HON'BLE MR. JUSTICE RAVI MALIMATH,
ACTING CHIEF JUSTICE
&
HON'BLE MS. JUSTICE JYOTSNA REWAL DUA
CIVIL WRIT PETITION No. 4594 of 2010
Between:-
MANOJ KUMAR BANSAL,
SON OF LATE SH. BRIJ BHUSHAN BANSAL,
EX.JUDICIAL OFFICER, HIMACHAL PRADESH,
JUDICIAL SERVICE,
RESIDENT OF R/O (BLOCK-A, SET NO.2)
NEW BROCKHURST, SHIMLA-2
PRESENTLY AT P.G. COLLEGE RESIDENCE
VILLA ROUND NAHAN, DISTT. SIRMAUR,
H.P.
.....PETITIONERS
(BY SH. AMAR VIVEK AGGARWAL AND
SH. RAJESH K. PARMAR, ADVOCATES)
AND
1. STATE OF HIMACHAL PRADESH
THROUGH THE CHIEF SECRETARY
FINANCIAL COMMISSIONER-CUM-HOME
SECRETARY TO THE GOVERNMENT
OF HIMACHAL PRADESH, SHIMLA.
2. HIGH COURT OF HIMACHAL PRADESH,
THROUGH ITS REGISTRAR GENERAL,
SHIMLA,
HIMACHAL PRADESH.
3. SH. T.N. VAIDYA, DISTT & SESSIONS
JUDGE (RETIRED) H.P.
PRESENTLY PRESIDENT,
::: Downloaded on - 31/01/2022 23:02:55 :::CIS
2
DISTRICT CONSUMER REDRESSAL FORUM,
MUKTSAR, PUNJAB.
.....RESPONDENTS
.
(SH. ASHOK SHARMA, ADVOCATE
GENERAL WITH SH. RANJAN SHARMA,
SMT. RITTA GOSWAMI, SH. VIKAS RATHORE,
ADDITIONAL ADVOCATES GENERAL
AND SMT. SEEMA SHARMA, DEPUTY
ADVOCATE GENERAL FOR R-1,
SMT. SHALINI THAKUR, ADVOCATE, FOR R-2,
NONE FOR R-3)
RESERVED ON: 19.08.2021
DELIVERED ON: 09.09.2021
WHETHER APPROVED FOR REPORTING: Yes.
____________________________________________________
This petition coming on for pronouncement this
day, Hon'ble Ms. Justice Jyotsna Rewal Dua, passed the
following:
ORDER
Petitioner was a judicial officer. After culmination of disciplinary proceedings, penalty of compulsory retirement was imposed upon him in the year 2000. Pursuant to interim order passed in the petitions filed by him, petitioner continued to serve. Litigations reached the Hon'ble Apex Court.
Subsequently another disciplinary proceeding was initiated against the petitioner in the year 2005, whereunder he was compulsorily retired on 10.06.2010. In the instant petition, petitioner has called in question the second disciplinary proceedings & the orders passed thereunder.
::: Downloaded on - 31/01/2022 23:02:55 :::CIS 32 Facts:
2(i) Petitioner joined Himachal Pradesh Judicial .
Service on 23.02.1987. He faced departmental proceedings culminating in imposition of penalty of compulsory retirement upon him on 22.09.2000. Respondent No.3 the then District and Sessions Judge, Shimla was the inquiry officer in the inquiry proceeding. In his inquiry report, he held that all the charges levelled against the petitioner were established. CWP No.943/2000 filed by the petitioner in respect of this disciplinary proceeding was allowed by the learned Single Judge. Petitioner was exonerated from all the charges. In LPA No.50/2004 filed by respondent No.2 (High Court), the operation of judgment passed by learned Single Judge was stayed by an interim order dated 13.12.2004. The interim order was stayed by the Hon'ble Apex Court on 04.03.2005 in Special Leave Petition No.3982/2005 filed by the petitioner. As a result whereof the petitioner continued to serve. This SLP was disposed of on 10.01.2008 with a direction that interim order dated 04.03.2005 shall remain in force till the disposal of LPA No.50/2004 by the High Court. LPA No.50/2004 was eventually partly decided in favour of the petitioner on 09.01.2009. The judgment passed by learned Single Judge was modified regarding two charges which were held to be ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 4 partly proved by enquiry officer. Respondent No.2 filed Civil Appeal No.1185/2012 against this judgment. The civil Appeal .
was disposed of by the Hon'ble Apex Court on 18.02.2020, inter alia keeping in view the compulsorily retirement of the petitioner in the interregnum in another disciplinary proceedings (impugned herein).
2(ii) While the petitioner was posted at Chopal, District Shimla, respondent No.2 received a complaint against him from one Sh. Vipin Lal Clerk of Sh. Balbir Singh, Advocate, Chopal. This complaint was dated 08.10.2005. The complainant levelled charges of exploitation and abuse of power by the petitioner. The details of this complaint are not being referred to at this stage for sake of brevity. Upon receipt of complaint, a discreet inquiry was ordered by respondent No.2 on 26.11.2005. Respondent No.3 the then District and Sessions Judge Shimla was directed to hold the discreet inquiry. Simultaneously, petitioner's comments to the complaint were also called for. Respondent No.3 conducted the discreet inquiry. He recorded statement of the complainant on 29.12.2005. Certain documents submitted by the complainant were also taken into possession by the Discreet Inquiry Officer.
Discreet inquiry report was submitted by respondent No.3 to respondent No.2 on 03.01.2006. Respondent No.3 in his ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 5 discreet inquiry report found substance in the allegations levelled against the petitioner.
.
2(iii) Upon consideration of all aspects, the Full Court on 14.07.2006 resolved to charge-sheet the petitioner for major penalty. Memo of charge-sheet was issued to the petitioner on 26/27.09.2006 under Rule 14 of the Central Civil Services (Classification, Control and Appeal) Rules, 1965 [in short CCS (CCA) Rules]. Petitioner submitted his written statement of defence on 07.10.2006 and supplementary written statement on 18.10.2006. Petitioner denied all the charges. Matter was considered by the Full Court on 21.03.2007. It was decided to hold regular inquiry against the petitioner. Sh. R.L. Raghu, the then District & Sessions Judge Shimla was appointed as Inquiry Officer on 13.4.2007. On petitioner's representation, the Inquiry Officer was changed and Sh. A.C. Dogra, the then District & Sessions Judge Mandi was appointed as Inquiry Officer on 31.5.2007. Inquiry proceedings were held. The inquiry officer inter alia recorded statements of complainant Vipin Lal (PW-1), his brother Ramesh Chand (PW-2) and of the discreet inquiry officer Sh. T.N. Vaidya (PW-7). The inquiry report was submitted to respondent No.2 on 28.05.2009. Inquiry officer held that charges levelled against the petitioner were not established.
::: Downloaded on - 31/01/2022 23:02:55 :::CIS 62(iv) The Full Court considered the inquiry report on 13.7.2009. A committee of two Hon'ble Judges was constituted .
to go through the report and suggest appropriate action. The committee submitted its report that inquiry officer neither correctly appreciated the material on record nor the ratio of law laid down in the decisions relied upon by him in the inquiry report. The committee concluded that there was enough material to differ with the findings and conclusions drawn by the inquiry officer. The Full Court on 27.8.2009 approved committee's views based on tentative reasoning. Alongwith a copy of the inquiry report, the disciplinary authority sent a notice to the petitioner under Rule 15(2) of CCS (CCA) Rules on 17.9.2009. Notice carried tentative reasons of disagreement of the disciplinary authority with the inquiry report. Petitioner was directed to submit his response thereto. Petitioner responded to the notice on 01.10.2009.
2(v) Petitioner's response was considered by the Full Court on 3.11.2009. A Committee of one Hon'ble Judge was constituted to examine his reply & to submit its report. The Committee in its report dated 17.02.2010 concluded that inquiry officer erred in exonerating the petitioner. The Full Court on 16.3.2010 considered the entire matter. The report of the committee was accepted. Report of inquiry officer was ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 7 reversed. Petitioner was held guilty of all the charges levelled against him. Respondent No.2 proposed to impose upon the .
petitioner penalty of dismissal from the service. Show cause notice in this regard was issued to the petitioner on 31.3.2010 alongwith extract of findings of respondent No.2, reversing the report of inquiry officer. Petitioner submitted his response to the show cause notice on 07.4.2010. His representation was considered by the Full Court on 23.4.2010. It was resolved to take lenient view. Instead of penalty of dismissal, penalty of compulsory retirement was recommended.
2(vi) On 10.05.2010, respondent No.2 informed respondent No.1 that though delinquent official deserved penalty of dismissal from service, however, taking lenient view on consideration of submissions made by the officer in his representation, a penalty of compulsory retirement was recommended to be imposed upon him. In view of the recommendation of respondent No.2, respondent No.1 issued notification on 31.05.2010/10.06.2010, compulsorily retiring the petitioner.
3. Having encapsulated the background of holding the disciplinary proceedings against the petitioner, certain relevant factual aspects may be narrated hereinafter around which submissions of learned counsel for the parties revolve:-
::: Downloaded on - 31/01/2022 23:02:55 :::CIS 83(i) Complaint against the petitioner:
Shri Vipin Lal Clerk in the office of Advocate Shri .
Balbir Singh Chopal, District Shimla, had sent the complaint dated 08.10.2005 to respondent No.2. In the complaint, he stated that he was known to the judicial officer since the year 2000. In April 2005, when the judicial officer came to Chopal, he called the complainant on telephone to PWD rest house and talked about working for him. That the complainant had spoken to the judicial officer about his and his brother's case pending in the Chopal Court. That the judicial officer told him that he would decide the cases in his favour and that of his brother but the complainant shall have to work for him till he remained posted at Chopal. That the complainant worked without wages for the officer from 10.04.2005 to 19.07.2005.
He did all the chores including cooking meals, cleaning utensils, washing clothes, ironing clothes, brooming, mopping and bringing vegetables & goods from the market etc. That the complainant fell sick on 19.07.2005 and could not go to work for the judicial officer. That on the request of the officer, he sent his brother Ramesh Chand to work for two days. That his brother Ramesh Chand had to leave for home due to domestic compulsion. Upon this, the judicial officer got infuriated. He started threatening the complainant on ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 9 telephone for not coming to work. That the officer also threatened to convict his brother in the pending case, not to .
decide the cases in their favour and that he would get cases framed against him from the police.
The complaint was duly signed by the
complainant.
3(ii). Discreet Inquiry:
During discreet inquiry conducted by respondent No.3, statement of complainant on oath was recorded on 29.12.2005. The complainant stood by the assertions made by him in the complaint dated 8.10.2005. The gist of his statement recorded by the discreet inquiry officer was that he knew Sh.
Mukesh Bansal from the year 2000 when the officer was posted as Sub Judge at Chopal. The complainant was sent to the residence of the judicial officer at Rampur, where he stayed for about four months. The complainant during this period worked at the officer's residence. In March 2001, mother of Sh. Mukesh Bansal left for Nahan. The complainant was also sent alongwith the mother of the judicial officer. At that time, Sh. Manoj Bansal was residing at Nahan with his family. The complainant helped him in vacating the Government accommodation. Sh. Manoj Bansal hired private accommodation, where the complainant worked for about four ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 10 months. Judicial Officer trained the complainant in driving and got him a driving licence issued from Mandi, where Sh.
.
Mukesh Bansal was posted. Complainant though was promised Rs.1,000/- per month as remuneration. However, after putting eight months of service, he was paid only Rs.4,000/-. The remaining amount was deducted by the officer on account of teaching him driving and for getting a driving licence issued in his favour. Subsequently, complainant came back to Chopal. After sometime, he starting working as Clerk in the office of Shri Balbir Singh Advocate. On 10.04.2005, Sh.
Manoj Bansal, who was posted at Chopal called him at the rest house, where he was staying. On his request, the complainant worked at his residence till 19.07.2005 without any remuneration. The officer had promised a job. The judicial officer had promised to acquit the complainant's brother in a case pending before his Court. The complainant due to ailment could not go to the officer's residence. Thereafter the officer starting making telephone calls to the complainant. Telephone conversation made by the officer on 21 st and 24th July, 2005 were taped by the complainant. The complainant further stated that after his lodging the complaint against the judicial officer on 8.10.2005 with respondent No.2, Sh. Manoj Bansal called ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 11 him in his chamber on 30.11.2005 and threatened to crush him emphasizing his position of a judicial officer.
.
The complainant during discreet inquiry also handed over to the Inquiry Officer a copy of another complaint dated 12.12.2005, copy of complaint titled Vipin Lal Vs. Khazan Sing [Case No.29-1 of 2005], copy of proceedings in case title State Vs. Ramesh Chand [Case No.33-1 of 2005], (both these matters were pending in petitioner's Court), copy of his own driving licence and O.P.D. ticket of Jalta Clinic Chopal. The case State Vs. Ramesh was heard by the petitioner. After reserving the matter for pronouncement of judgment, at petitioner's request it was transferred by learned Additional Chief Judicial Magistrate on 03.10.2005 to some other Court. The case Vipin Lal vs. Khazan Singh was dismissed on 30.11.2005 for non-prosecution.
3(iii) After conducting the discreet inquiry, respondent No.3 in his discreet inquiry report dated 03.01.2006 concluded as under:-
"7. The net result after making discreet enquiry as ordered is that complainant was engaged as domestic helper by Shri Manoj Kumar Bansal, though he had also filed a complaint against Khazan Singh in that Court. His brother Ramesh ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 12 Chand at that time was also an accused in his court."
3(iv) Charge-sheet:
.
Respondent No.2 issued a charge-sheet to the petitioner on 26.9.2006 under Rule 14 of CCS (CCA) Rules, with following Articles of charges:
ARTICLE-1 "Shri Manoj Kumar Bansal, Civil Judge (Sr. Division) on 10.04.2005, i.e. a day prior to his joining as Civil Judge (Sr. Division)-cum-Judicial Magistrate 1st Class, Chopal, contacted one Shri Vipil Lal son of Shri Ram, Clerk of Sh. Balbir Singh, Advocate, Chopal (who was known to Shri Bansal since 2000), telephonically and called him to PWD Rest house, Chopal where he persuaded him to work gratis as his domestic help by giving him assurance that he will be provided Govt. employment as he (Sh. Bansal) is likely to be appointed as Chief Judicial Magistrate. Further, said Shri Vipin Lal was also assured by Sh.
Bansal that his brother Shri. Ramesh Chand who was an accused in a pending criminal case under Sections 451/351/427/506 IPC in the court of JMIC, Chopal would be acquitted by him, where after said Sh. Vipin Lal started working gratis as domestic aid at the residence of Sh. Manoj Kumar Bansal w.e.f. 10.4.05 and continued working till 19.7.2005.::: Downloaded on - 31/01/2022 23:02:55 :::CIS 13
Thus, said Sh. Manoj Kumar Bansal abused his official position, which amounts to a grave misconduct as defined in Rule 3(i) (iii) of the CCS .
(Conduct) Rules, 1964."
ARTICLE-II "That said Sh. Manoj Kumar Bansal, while functioning as Civil Judge-cum- JMIC Chopal directed Sh. Vipin Lal who had been working with him as domestic aid but was unable to work due to his sudden illness, to ask his, brother Sh. Ramesh Chand, who was an accused in a criminal case under Sections 451/345/427/506 IPC in his Court, to work in his place as domestic aid w.e.f. 19.7.2005. This act of delinquent Sh. Manoj Kumar Bansal is also a grave misconduct unbecoming of a Judicial officer, as defined in Rule 3(i)(ii) of the CCS (Conduct) Rules, 1964.
ARTICLE-III "That said Sh. Manoj Kumar Bansal, while functioning as Civil Judge-cum-JMIC, Chopal threatened Sh. Vipin Lal on telephone when the latter due to his illness had stopped working as domestic aid that if he did not resume the work as his domestic aid, then his brother Sh. Ramesh Chand, who was facing a criminal trial in the court of Mr. Bansal, would be convicted and that Sh. Vipin Lal would also be involved in a criminal case with the help of the police."
::: Downloaded on - 31/01/2022 23:02:55 :::CIS 14 3(v) Regular Inquiry Proceedings
The regular inquiry was held against the
.
petitioner, wherein statements of the complainant (PW-1) complainant's brother Shri Ramesh Chand, the discreet inquiry officer/respondent No.3 (PW-7) and that of petitioner were also recorded. The complaint made by the complainant on 08.10.2005 and his statement recorded on 29.12.2005 by the discreet inquiry officer were produced in evidence. The complaint was exhibited as Ext. PA and the statement of complainant recorded during the discreet inquiry as Ext.PB.
The complainant as PW-1 denied the allegations levelled in the complaint Ext.PA, but admitted his signature over it. He stated that he was instigated by someone to sign the complaint. He did not disclose the name of alleged instigator. At one place he stated that Ext.PA was sent to the High Court by the alleged unnamed instigator whereas at the other place he admitted stating before the discreet inquiry officer of sending the complaint (Ext.PA) himself. While appearing as PW-1, the complainant denied any acquaintance with Sh. Mukesh Bansal. He tried to resile from his statement recorded in discreet inquiry. He stated that his statement was not recorded in the manner stated by him. However, he also stated that he was not under any threat or fear when his ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 15 statement was recorded by the discreet inquiry officer on 29.12.2005. The complainant stated that he does not sign any .
paper without reading or understanding the same, but he had signed his statement dated 29.12.2005 without going through its contents. The complainant stated that he had passed BA examination in the year 2000. He denied having any telephonic conversation with the petitioner. He denied having sent tape (Mark A-1) to the High Court or to the inquiry officer.
He denied having fallen sick during July 2005. He denied receiving any medical treatment from Jalta's clinic at Chopal.
He stated that he had a driving licence, which he had lost two months back. The said driving licence was stated to have been prepared at Nurpur District Kangra. He also denied that he had requested his brother Ramesh Chand, who was accused in a criminal case, to work as a domestic servant at petitioner's residence w.e.f. 19.07.2005.
Statement of Ramesh Chand, brother of the complainant was also recorded by the inquiry officer. Shri Ramesh Chand appeared as PW-2 and stated that he knew the judicial officer posted at Chopal during the year 2005. A criminal case registered against him was pending in the Court of the judicial officer. The witness denied his brother's ever approaching the judicial officer to help him (PW-2) in the ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 16 criminal case or that any kind of assurance was given by the judicial officer to the complainant. PW-2 stated that his brother .
never informed him that the judicial officer would help him in the case. He also denied having been asked by his brother to work as domestic servant in the house of judicial officer w.e.f.
19.07.2005. He denied his brother worked as domestic servant gratis in the judicial officer's house.
The discreet inquiry officer appeared as PW-7 and stated that the complainant (PW-1) had made a statement on oath (Ext.PB) before him on 29.12.2005. Such statement was recorded by him (inquiry officer) in the manner it was stated. After recording the statement (Ext.PB) he read it out to the complainant, who after admitting it to be correct, appended his signatures on it at 'point A'. Complainant also submitted another complaint dated 12.12.2005 alongwith certain documents including a copy of his driving licence. An audio cassette alongwith tape recorded was also brought by the complainant. It was played but was very lengthy & required transcription. The cassette was taken into custody & sent to the High Court with transcription. During cross-examination, PW-7 stated that cassette was not handed-over by the complainant on 29.12.2005. It was produced later & taken into possession.
::: Downloaded on - 31/01/2022 23:02:55 :::CIS 174. The arguments advanced by learned counsel for the parties can be discussed under following heads:-
.
Compliance of provisions of CCS (CCA) Rules 1965 while holding disciplinary proceedings against the petitioner.
4(i) An argument has been raised by learned counsel for the petitioner that discreet inquiry should not have been conducted by respondent No.3. It has been submitted that respondent No.3 had earlier also conducted a regular inquiry against the petitioner under another charge-sheet issued to the petitioner. After conclusion of the inquiry proceeding, under that charge-sheet, the disciplinary authority had imposed a penalty of compulsory retirement upon the petitioner, on 22.09.2000. In CWP No.943/2000 preferred by the petitioner, learned Single Judge had set aside the punishment order inter-alia holding that the inquiry officer had not given any reason in the inquiry report as to why he did not accept the statement of three DWs'. On that basis, learned counsel for the petitioner submitted that respondent No.3 should have recused himself from holding discreet inquiry against the petitioner in the instant case.
The above is a very feeble argument raised by the petitioner. Respondent No.3 was a judicial officer posted at ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 18 that time as District & Sessions Judge Shimla. He was duty bound to follow and obey the order issued to him by .
respondent No.2 (High Court of Himachal Pradesh). It was respondent No.2, who had directed respondent No.3 to hold discreet inquiry against the petitioner. Respondent No.3, therefore, was bound to comply the direction. Just because respondent No.3 was the inquiry officer against the petitioner in an earlier charge-sheet or because his findings in the inquiry report in respect to first charge-sheet were not approved by the learned Single Judge while deciding a writ petition, would not lead to a conclusion that respondent No.3 was biased against the petitioner. There was no reason for respondent No.3 to recuse from holding the discreet inquiry when he was directed to do so by respondent No.2. In the discreet inquiry, respondent No.3 recorded the statement of the complainant and took possession of some documents and articles from him. Conclusion drawn by respondent No.3 during the discreet inquiry was on the basis of the statement of the complainant and the articles/documents handed over to him. Further action upon discreet inquiry was taken by respondent No.2. Discreet inquiry was not straightaway acted upon by respondent No.2.
A full fledged regular inquiry was conducted by respondent No.2 in accordance with law. Therefore, the submission that ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 19 respondent No.3 should have recused himself from conducting the discreet inquiry is without any force.
.
4(ii) Learned counsel for the petitioner also emphasized that the petitioner was not associated during discreet inquiry. Statement of complainant was recorded during discreet inquiry behind back of the petitioner. Statement of complainant's brother was not recorded during discreet inquiry.
Version of petitioner was not taken into consideration during discreet inquiry.
The object of discreet inquiry is to conduct an inquiry to get some information without attracting attention. The inquiry is held to find out the veracity of allegations in the complaint. The statement and information obtained during the course of discreet inquiry is meant to find out whether to proceed ahead with disciplinary proceedings or not. The information gathered during discreet inquiry sets in motion further course of action. Delinquent official need not be associated during discreet inquiry or else the very purpose of 'discreet' inquiry may get defeated. In the instant case, discreet inquiry was conducted. Statement of complainant was recorded. At that stage, it was not necessary to record statements of all those alleged to be associated. Entire matter thereafter was considered by the Full Court. It was found that ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 20 there was sufficient information & substance to initiate disciplinary proceedings against the petitioner. Therefore, .
charge-sheet was issued & regular inquiry ensued.
4(iii)(a) Learned counsel for the petitioner submitted that the inquiry officer had submitted the inquiry report in favour of the petitioner. The disciplinary authority did not agree with the findings of the inquiry officer. In terms of Rule 15(2) of CCS (CCA) Rules, the disciplinary authority upon disagreement with report of inquiry officer, is required to forward a copy of the inquiry report together with its own tentative reasons for disagreement with the findings of the inquiry officer on any article of charge to the delinquent officer.
The delinquent officer then shall be required to submit, if he so desires, his written representation to the disciplinary authority.
Learned counsel submitted that this provision has not been complied with in the instant case. Reasons for disagreement given by the disciplinary authority in the notice dated 17.09.2009 were very sketchy. They can hardly be called the reasons for disagreement. The petitioner was denied the opportunity to effectively respond to the so called reasons for disagreement given by the disciplinary authority. Prejudice, therefore, has been caused to him.::: Downloaded on - 31/01/2022 23:02:55 :::CIS 21
4(iii)(b) Rule 15 Sub Rule 2 of CCS (CCA) Rules reads as under:-
.
"The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the Disciplinary Authority or where the Disciplinary Authority is not the Inquiring Authority, a copy of the report of the Inquiring Authority together with its own tentative reasons for disagreement, if any, with the findings of Inquiring Authority on any article of charge to the Government servant who shall be required to submit, if he so desires, his written representation or submission to the Disciplinary Authority within fifteen days, irrespective of whether the report is favourable or not to the Government servant."
After considering the inquiry report, the disciplinary authority did not agree with the findings of the inquiry officer. It sent notice to the petitioner under Rule 15(2) of CCS (CCA) Rules, 1965 on 17.9.2009 in following words:-
"Subject: Notice under Rule 15(2) of CCS (CCA) Rules, 1965.
With reference to the Inquiry held against you under Rule 14 of the CCS (CCA) Rules, 1965, I am directed to send herewith a photocopy of the Inquiry Report submitted by the Inquiry Officer, Shri A.C. Dogra, L.R.-cum-Secretary (Law) to the Govt. of Himachal Pradesh, under Rule 15(2) of ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 22 the Rules ibid and to say that the Inquiry Officer has neither correctly appreciated the evidence and the material on record nor is the ratio of law .
laid down in the decisions relied upon by him in the inquiry report applicable to the facts. For instance, the statement of PW-7 Mr. T.N. Vaidya, statement of complainant PW-1 Mr. Vipin Pal and Ext. PA as well as Ext. PB have not been considered in its right perspective.
You are, therefore, required to submit your written representation/submission in this regard to this Registry within 15 days from the date of receipt of this communication."
We may observe here that no such ground as is being canvassed in the present petition with regard to tentative reasons of disagreement of disciplinary authority being sketchy was taken by the petitioner while submitting his representation to the above notice dated 17.9.2009. In his representation, the petitioner effectively responded to the notice. He did not agitate there that he was not aware about reasons of disagreement or that reasons of disagreement were not clear.
The petitioner a judicial officer was expected to know the legal provisions. After responding to the notice dated 17.9.2009 without raising any objection of it being vague, petitioner cannot make a grievance in the present petition of the same being sketchy, vague & not disclosing adequate ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 23 reasons for disagreement. We have however carefully perused the notice sent to the petitioner under Section 15(2) of CCS .
(CCA) Rules and do not find the recorded tentative reasons of disagreement to be vague. While disagreeing with the inquiry report, the disciplinary authority is only to record its tentative reasons for disagreement and not the final conclusion. In the notice dated 17.09.2009, the disciplinary authority has clearly stated that the inquiry officer did not correctly appreciate the evidence and material on record as well as the legal position.
In particular, reference to the statement of PW-7 Sh. T.S. Vaidya, statement of PW-1 complainant Sh. Vipin Lal, the complaint Ext.PA and statement of complainant recorded during discreet inquiry Ext-PB has been given in the notice.
The case of the prosecution was mainly centered around the statements of these witnesses and the documents Ext.PA and Ext.PB. The disciplinary authority by way of tentative reasons of disagreement informed the petitioner that in its opinion the statements of these witnesses and the two documents were not considered in correct perspective by the inquiry officer in his report. The disciplinary authority also conveyed that in its opinion, the ratio of law in the decisions relied upon by the inquiry officer was not applicable to the facts.
::: Downloaded on - 31/01/2022 23:02:55 :::CIS 24Therefore, it cannot be said that the tentative reasons of disagreement conveyed by the disciplinary authority .
with the findings of the inquiry officer to the petitioner in the notice dated 17.07.2009 were vague and further because of such alleged vagueness, the petitioner was prevented from effectively responding to the notice. The notice issued to the petitioner on 17.7.2009 under Rule 15(2) of CCS (CCA) Rules 1965 was in consonance with law.
4(iv)(a) Another procedural error in conduct of disciplinary proceedings, pointed out by the learned counsel for the petitioner relates to the notice dated 31.03.2010 (Annexure P-14) sent by respondent No.2 to the petitioner. It has been submitted that only extract of final conclusion drawn by disciplinary authority was appended with the notice & not the complete report. This has denied an opportunity to the petitioner to state his full case in defence.
Law does not envisage sending notice to the delinquent officer after consideration of his representation under Rule 15(2) of the CCS (CCA) Rules. This notice was sent by respondent No.2 after considering petitioner's representation in response to the notice sent to him on 17.7.2009 under Rule 15(2) of the CCS (CCA) Rules (containing the tentative reasons of disagreement of the ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 25 disciplinary authority with the inquiry report). The petitioner had sent his detailed representation to this notice. His .
representation was considered. Respondent No.2 thereafter recorded its final findings and conclusion disagreeing with the inquiry report. Respondent No.2 proposed to impose upon the petitioner a penalty of dismissal from service under Rule 11(ix) of the CCS (CCA) Rules. The second notice sent to the petitioner vide Annexure P-14 dated 31.03.2010 was to give an opportunity to him to show cause as to why the penalty of dismissal from service be not imposed upon him. Rule 15 does not envisage sending notice before imposing punishment. Still this notice was sent to the petitioner alongwith extract of final conclusion drawn by disciplinary authority. No prejudice was caused to the petitioner on receipt of the second notice. If nothing else, he got an opportunity to plead against imposition of penalty of dismissal upon him under the second notice. He represented once again in response to the second notice. Upon consideration of his representation, taking a lenient view, the proposed penalty of dismissal from service was substituted with penalty of compulsory retirement. By sending notice to the petitioner of proposed punishment alongwith extract of conclusion drawn by disciplinary authority no procedure can be said to have been ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 26 infringed. There was also no pre-judging of the matter as alleged by the petitioner.
.
4(iv)(b) Learned counsel for the petitioner also contended that the findings and conclusion drawn by the disciplinary authority in reversing the inquiry report, enclosed alongwith second show cause notice dated 31.03.2010 was infact required to be sent to the petitioner alongwith first notice dated 17.9.2009 issued to him under Rule 15(2) of the CCS (CCA) Rules. This was necessary to enable the delinquent official to effectively respond to the notice dated 17.9.2009.
Rule 15(2) of the CCS (CCA) Rules only mandates supplying of tentative reasons of disagreement of disciplinary authority with the inquiry report. The final conclusion are not arrived at that stage by the disciplinary authority. It is only after following the procedure prescribed under Rule 15(2) of the CCS (CCA) Rules, after considering the representation of delinquent official that the final conclusion can be drawn by the disciplinary authority. Therefore, to say that the final conclusion arrived at by the disciplinary authority (enclosed with Annexure P-14) dated 31.3.2010 was to enclosed alongwith notice dated 17.09.2009 (Annexure P-12) is not correct statement in law.
::: Downloaded on - 31/01/2022 23:02:55 :::CIS 274(v) Learned counsel for the petitioner also raised an issue about the alleged incorrect legal provisions mentioned in .
the notification under which the State imposed penalty of compulsorily retirement upon the petitioner. The notification compulsorily retiring the petitioner was issued by the State under Rule 11 of CCS (CCA) Rules, 1965 read with Rule 15 of H.P. Judicial Service Rules 2004. Learned counsel submitted that Rule 15 of 2004 Rules operates in different field. This rule could not be invoked to impose penalty of compulsorily retirement upon the petitioner.
Disciplinary proceedings were conducted against the petitioner under CCS (CCA) Rules, 1965. Respondent No.2 had followed the provisions of CCS (CCA) Rules, while holding these proceedings. Penalty of compulsorily retirement was recommended to be imposed upon the petitioner by respondent No.2 to respondent No.1 under CCS (CCA) Rules.
Notification compulsorily retiring the petitioner was issued by respondent No.1 under Rule 11(vii) of CCS (CCA) Rules read with Rule 15 of H.P. Judicial Service Rules 2004. Mention of Rule 15 of 2004 Rules in the notification dated 31.05/10.06.2010 does not affect the validity of the notification or the punishment imposed upon the petitioner. It is well settled that if an authority has a power ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 28 under the law merely because while exercising that power the source of power is not specifically referred to or a reference is .
made to a wrong provision of law, that by itself does not vitiate the exercise of power so long as the power does exist and can be traced to a source available in law. It would be apt to refer to (2009) 9 SCC 173 titled P.K. Palanisamy Vs. N. Arumugham and another, where relying upon (2007) 13 SCC 255 titled Ram Sunder Ram Vs. Union of India, it was held that quoting of wrong provision in order of discharge by the competent authority does not take away the jurisdiction of the authority to pass the order and the order of discharge from the army service cannot be vitiated on this sole ground. Relevant extracts from the judgment are as under:-
"19....It appears that the competent authority has wrongly quoted Section 20 in the order of discharge whereas, in fact, the order of discharge has to be read having been passed under Section 20 of the Army Act.
'9. It is well settled that if an authority has a power under the law merely because while exercising that power the source of power is not specifically referred to or a reference is made to a wrong provision off law, that by itself does not vitiate the exercise of power so long as the power does exist and ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 29 can be traced to a source available in law [see N. Mani v. Sangeetha Theatre (2004) 12 SCC 278].
.
Thus, quoting of wrong provision of Section 20 in the order of discharge of the appellant by the competent authority does not take away the jurisdiction of the authority under Section 22 of the Army Act. Therefore, the order of discharge of the appellant from the army service cannot be vitiated on this sole ground as contended by the Learned Counsel for the appellant."
4(vi) It has also been argued for the petitioner that opportunity of hearing was not granted to him. This amounts to violation of principles of natural justice.
Disciplinary proceedings were conducted under the CCS(CCA) Rules. Petitioner has been duly associated with inquiry proceeding. Procedure as contemplated in law was complied with in conduct of disciplinary proceeding. There is no provision under these rules, mandatory requiring affording an opportunity of hearing to the petitioner.
4(vii)(a) Findings of disciplinary authority on merit:
It is settled legal position that while exercising the power of judicial review, the Court will not act as an appellate authority for re-appreciating the evidence led in ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 30 the departmental inquiry. The findings of fact recorded in the departmental inquiry are not to be interfered with .
except when the same were based on no evidence or are absolutely perverse.
Considering plethora of previous judgments on the issue, Hon'ble Apex Court in (2020) 3 Supreme Court Cases 423, titled State of Karnataka and another versus N. Gangaraj after noticing the facts of the case wherein Disciplinary Authority agreed with inquiry officer's findings about delinquent police official being guilty of misconduct and imposed penalty of dismissal, which was affirmed in appeal, observed that the Tribunal and the High Court could not have interfered with findings of facts recorded by re-appreciating the evidence as if they were the Appellate Authority. It was also observed that power of judicial review is confined to the decision making process and is not akin to the power of Appellate Authority. 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 eyes of law. The Court in its power of Judicial review does not act as an appellate authority to re-
appreciate evidence and to arrive at its own independent findings. It is only where the conclusion reached by disciplinary ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 31 authority is perverse or suffers from patent error on face of record or based on no evidence at all that interference will be .
called for. Question of adequacy of evidence is not required to be gone into. Interference with decision of Departmental Authority is permitted if such Authority had held the proceedings in violation of prescribed procedure or in violation of the principles of natural justice. The Hon'ble apex Court further held as under :-
"14. On the other hand learned counsel for the respondent relies upon the judgment reported as Allahabad Bank v. Krishna Narayan Tewari (2017) 2 SCC 308, 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 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 ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 32 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 larger bench judgments in State of A.P. Vs. S. Sree Rama Rao, AIR 1963 SC 1723 and B.C. Chaturvedi Vs. Union of India, (1995) 6 SCC 749 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.
16. Accordingly, appeal is allowed and orders passed by the Tribunal and the High Court are set aside and the order of punishment imposed is restored"
4(vii)(b) In the instant case, learned counsel for the petitioner submitted that:- Discreet inquiry was held behind the back of the petitioner. The petitioner was not associated in the discreet inquiry. Petitioner had not been given the chance to cross examine the complainant during discreet inquiry.::: Downloaded on - 31/01/2022 23:02:55 :::CIS 33
Statement of complainant recorded during discreet inquiry could not be held against the petitioner. In the regular inquiry, .
the complainant had resiled from his statement made in the discreet inquiry (Ext.PB). The complainant in the regular inquiry had stated that his statement in the discreet inquiry was not recorded in the manner in which he had made the statement. Complainant also stated that the complaint (Ext.PA) was made by him at someone's instigation. Once the main evidence against the petitioner had gone i.e. when the complainant had discarded his own complaint as well as the statement made by him in the discreet inquiry then the petitioner could not have been held guilty of the charges by the disciplinary authority. Once the regular inquiry was conducted & the complainant was subjected to cross-examination, then his statement made in the discreet inquiry would be of no consequence. It is only the evidence given by the complainant during regular inquiry that can be considered and not his statement made in the discreet inquiry. It is for this reason that the inquiry officer had exonerated him of all the charges. There was no occasion for the disciplinary authority to take a different view to the one taken by the inquiry officer. The inquiry officer had exonerated the petitioner of all the charges ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 34 levelled against him. Reversal of findings of inquiry officer by the disciplinary authority was uncalled for.
.
Learned counsel for respondent No.2 argued that the disciplinary authority had gone through the findings of the inquiry officer. It did not agree with the findings and conclusion drawn by the inquiry officer. The disciplinary authority gave its own findings and arrived at the conclusion that the delinquent official was guilty of the charges levelled against him. During the conduct of inquiry and disciplinary proceeding, there had been no infraction of prescribed mandatory procedure.
4(vii)(c) Question of use of evidence collected during discreet inquiry came up for consideration before the Apex Court in K.L. Shinde Vs. State of Mysore (1976) 3 SCC 76. It was held that reliance placed by Superintendent of Police on the earlier statements made by the three constables including Akki from which they resiled, did not vitiate the inquiry or the impugned dismissal order as the departmental proceedings are not governed by strict rules of evidence as contained in the Indian Evidence Act. When a witness is called, the statement given previously by him behind the back of the party is put to him, and admitted in evidence, a copy thereof is given to the party and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 35 should be repeated by the witness word by word and sentence by sentence, is to insist on bare technicalities and rules of .
natural justice are matters not of form but of substance. They are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged and he is given an opportunity to cross examine them. Relevant paras of the judgment read as under:-
"9.........It may also be observed that departmental proceedings do not stand on the same footing as criminal prosecutions in which high degree of proof is required. It is true that in the instant case, reliance was placed by the Superintendent of Police on the earlier statements made by the three police constables including Akki from which they resiled but that did not vitiate the enquiry or the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act. That apart, as already stated, copies of the statements made by these constables were furnished to the appellant and he cross- examined all of them with the help of the police friend provided to him. It is also significant that Akki admitted in the course of his statement that he did make the former statement before the P.S.I. Khade-bazar police station, Belgaum, on November 21, 1961 (which ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 36 revealed appellant's complicity in the smuggling activity) but when asked to explain as to why he made that statement, he expressed his inability .
to do so. The present case is, in our opinion, covered by a decision of this Court in State of Mysore v. Shivabsappa(1) where it was held as follows:-
"Domestic tribunals exercising quasi- judicial functions are not courts and 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 procedures 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. What is a fair opportunity must depend on the facts and circumstances of each case, but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 37 conducted in accordance with the procedure followed in courts.
.
2. In respect of taking the evidence in an enquiry before such tribunal, the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the explanation of the witness will in its entirety, take place before the party charged who will have full opportunity of cross-examining him.
The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him, and admitted in evidence, a copy thereof is given to the party and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance. They are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged and he is given an opportunity to cross examine them."::: Downloaded on - 31/01/2022 23:02:55 :::CIS 38
10. Following the above decision, this Court held in State of U.P. Vs Om Prakash(1970) 3 SCC 878 that the enquiry is not vitiated if the statements .
taken at the preliminary stage of enquiry are made available to the delinquent officer and he is given an opportunity to cross-examine the witnesses in respect of those statements."
In (2009) 1 SCC 438 titled Roop Singh Negi Vs. Punjab National Bank & Ors, it was held that an inquiry officer in a departmental proceedings performs quasi judicial functions. Purported evidence collected during investigation against the accused by the investigating officer by itself would not be treated to be the evidence in disciplinary proceedings.
No witness was examined to prove the documents collected in investigation. The management witnesses merely tendered the documents but did not prove the contents thereof. Relevant part of the judgment in this regard is as under:-
"Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 39 against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove .
the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the Enquiry Officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. Appellant being an employee of the bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book.
Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the Enquiry Officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left".
In State of Mysore Vs Shivabasappa (1964) ILLJ 693 Kant, it has been held that for taking evidence in an inquiry, the person against whom a charge is made should ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 40 know the evidence which is given against him so that he is in a position to give his explanation. When the evidence is oral, .
normally the explanation of the witness well in its entirety take place before the party charged, who will have full opportunity of cross examining him. The position is same when a witness is called, statement given previously by him behind the back of the party is put to him and admitted in evidence.
4(vii)(d) With assistance of learned counsel for the parties we have gone through the record. We find that it was not a case where the complaint (Ext.PA) and the statement made by the complainant during the discreet inquiry (Ext.PB) were taken into evidence in regular inquiry without giving opportunity to the petitioner to confront the witnesses about them. Vipin Lal was the complainant. He stepped into the witness box as PW-1. The complaint (Ext.PA) made by him to respondent No.2 and his statement (Ext.PB) recorded during the discreet inquiry held by respondent No.3 have been proved during regular inquiry. Petitioner has raised question about evidentiary value of Ext.PA & Ext.PB in the regular inquiry. The argument raised is that petitioner was not associated in discreet inquiry, therefore, there cannot be held against him. Petitioner was given an opportunity to cross-examine the witness. Petitioner availed this opportunity. Therefore, it cannot be said that any ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 41 prejudice was caused to the petitioner. The complaint (Ext-PA) and the statement (Ext.PB) of the complainant recorded during .
discreet inquiry were produced and proved in evidence during the regular inquiry. The delinquent official also got all the chances to confront the complainant and other witnesses with both these documents.
4(vii)(e) While appearing as PW-1 in the regular inquiry, the complainant did not completely support his statement Ext.PB recorded during the discreet inquiry. He stated that it was not recorded in the manner, he had stated. The inquiry officer gave considerable weight to the complainant's resiling his statement Ext.PB and complaint Ext.PA. The disciplinary authority however considered this aspect differently. The disciplinary authority observed that: (a) the complainant (PW-
1) had admitted in the regular inquiry that when his statement in the discreet inquiry was being recorded, he was not under any pressure, intimidation and threat etc. The statement recorded by him during discreet inquiry was of his own free will. (b) Complainant (PW-1) had admitted that he had appended his signature on the statement recorded during discreet inquiry. (c) Complainant (PW-1) was not a layman. He was graduate, working as a clerk in the office of an Advocate.
(d) The discreet inquiry officer/respondent No.3 while ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 42 appearing as PW-7 in the regular inquiry stated that he had recorded the statement of the complainant in the manner in .
which the complainant had stated and that he did not twist the words stated by the complainant. After recording the statement, he had read it out to the complainant, who after accepting it to be correct signed the same. The statement of the complainant was attested by the discreet inquiry officer.
During cross examination of PW-7, it was not put to him by the petitioner that he did not record the statement Ext.PB or that he did not record the statement correctly and in the manner stated by the complainant. (e) In the discreet inquiry, the complainant had stated that he was acquainted with the delinquent official since the year 2000. He worked for the delinquent official at Nahan for many months. He was not given promised wages. The official had got prepared complainant's driving licence from Mandi, where Sh. Mukesh Bansal was posted. In lieu of the driving licence, half of the promised wages had been reduced. The complainant had further stated that in the year 2005, the delinquent official had called him at the PWD rest house Chopal, where he was staying and had directed him to work at his residence. Certain cases of the complainant and that of his brother were pending at that time in the Court of the delinquent official. In lieu of the ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 43 complainant's working as domestic helper at the residence of delinquent official, the officer had promised to acquit him and .
his brother in the cases against them pending in his Court.
With this understanding, the complainant's had worked at the residence of delinquent official w.e.f. 10.04.2005 to 19.7.2005.
The complainant further stated that he fell sick on 19.07.2005.
He requested, his brother Ramesh Chand (PW-2) to work as a domestic helper at the residence of the delinquent official. Due to domestic compulsion, petitioner's brother Ramesh Chand could not continue working as domestic helper at the residence of delinquent official. The delinquent official got infuriated and started threatening the complainant.
Above is the gist of statement made by the complainant during discreet inquiry, which was considered by the disciplinary authority. The disciplinary authority held that Ext.PA & PB prove that delinquent took work from the complainant & his brother as domestic aid gratis against illegal assurance & threats. Change of stand by the complainant during regular inquiry was for reasons best known to him.
Change of stand was nothing but an after thought to help the delinquent. Neither PW-1 nor PW2 explained as to why PW-1 did not disown his complaint (Ext.PA) dated 8.10.2005 at the time of giving statement Ext.PB on 29.12.2005. Cases of ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 44 complainant & his brother PW-2 were pending in petitioner's Court. Delinquent official in his statement did not state that .
Ext.PB was not recorded in the manner stated by the complainant.
In the regular inquiry, the complainant had resiled from his statement recorded in the discreet inquiry. However, the fact remains that the complainant had admitted having signed the statement recorded during discreet inquiry (Ext.PB).
The complainant had also admitted sending the complaint (Ext.PA). In regular inquiry he stated that the complaint was sent by him at the instigation of someone else. But that someone else was not named by him. As observed earlier, the complainant was a graduate and working as a Clerk in the office of an Advocate. The complaint was dated 08.10.2005.
The statement of the complainant was recorded in the discreet inquiry by respondent No.3 more than two months later i.e. on 29.12.2005. Even in this statement, the complainant had not only stood by his complaint but had given a more clear picture.
The signatures on the complaint (Ext.PA) as well as on the statement (Ext.PB) have been admitted by the complainant in the regular inquiry.
Taking stock of entire evidence available on record, the disciplinary authority disagreed with the findings ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 45 and conclusion drawn by the inquiry officer. The inquiry officer had concluded that complainant's resiling of statement & .
complaint virtually means that there was no evidence to proceed against the delinquent official. Whereas the disciplinary authority had looked into the evidence in proper prospective, considered Ext-PA, Ext-PB, statements of PW-1 PW-2, PW-7 & of delinquent official and held that inquiry officer erred in exonerating the delinquent official. Disciplinary authority held that the charges against him were established.
Following was held in (2015) 2 SCC 610 titled Union of India vs. P.Gunasekaran in respect of power of judicial review of the High Court in the disciplinary proceedings:-
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. The High Court can only see whether:::: Downloaded on - 31/01/2022 23:02:55 :::CIS 46
(a). the enquiry is held by a competent
authority;
(b). the enquiry is held according to the
.
procedure prescribed in that behalf;
(c). there is violation of the principles of
natural justice in conducting the proceedings;
(d). the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e). the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f). the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(I) the finding of fact is based on no evidence.
13. Under Article 226/227 of the Constitution of India, the High Court shall not:
(i). re-appreciate the evidence;
(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;::: Downloaded on - 31/01/2022 23:02:55 :::CIS 47
(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."
It will also be appropriate to refer (2021) 2 SCC 612 titled Deputy General Manager (Appellate Authority) and others Vs Ajai Kumar Srivastava, wherein it was observed that judicial review of departmental inquiry by the Court is limited to determining whether (i) enquiry was held by competent authority; (ii) whether there was compliance with principles of natural justice; and (iii) whether findings were based on some evidence and whether authority had jurisdiction to arrive at conclusion. It was further held that in exercise of jurisdiction of judicial review, courts would not interfere with findings of facts arrived at in disciplinary proceedings except in case of mala fides or perversity i.e. where there is no evidence to support finding or finding is such that no reasonable man could arrive at. Where there is some evidence to support finding arrived at in departmental proceedings, same must be sustained.
::: Downloaded on - 31/01/2022 23:02:55 :::CIS 48Relevant paragraphs from the judgment are extracted hereinafter:-
.
"22. The power of judicial review in the matters of disciplinary inquiries, exercised by the departmental/appellate authorities discharged by constitutional Courts under Article 226 or Article 32 or Article 136 of the Constitution of India is circumscribed by limits of correcting errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice and it is not akin to adjudication of the case on merits as an appellate authority which has been earlier examined by this Court in State of Tamil Nadu Vs. T.V. Venugopalan and later in Government of T.N. and Another Vs. A. Rajapandian and further examined by the three Judge Bench of this Court in B.C. Chaturvedi Vs. Union of India and Others5 wherein it has been held as under:
"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 enquiry, 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 718] this Court held at p. 728 that if the conclusion, upon ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 49 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.
24. It is thus settled that the power of judicial review, of the Constitutional Courts, is an evaluation of the decision making 3 1994(6) SCC 302 4 1995(1) SCC 216 5 1995(6) SCC 749 6 2017(1) SCC 768 7 2020(9) SCC 471 process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The Court/Tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the conclusion or finding reached by the disciplinary authority if based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached or where the conclusions upon consideration of the evidence reached by the disciplinary authority is perverse or suffers from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.::: Downloaded on - 31/01/2022 23:02:55 :::CIS 50
28. The Constitutional Court while exercising its jurisdiction of judicial review under Article 226 or Article 136 of the Constitution would not .
interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of malafides or perversity, i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectivity could have arrived at that findings and so long as there is some evidence to support the conclusion arrived at by the departmental authority, the same has to be sustained."
It is not for this Court to act as an appellate authority in the disciplinary proceedings and re-appreciate the evidence. The inquiry was held by the competent authority. It was held according to the procedure prescribed in law. There was no violation of principles of natural justice. Findings of disciplinary authority are based on evidence. The disciplinary authority did not consider any inadmissible evidence in reaching its conclusion. The authority in reaching the conclusion was not guarded by any irrelevant or extraneous consideration.
Thus, looking from any angle, we do not find the impugned proceedings/orders to be suffering from any ::: Downloaded on - 31/01/2022 23:02:55 :::CIS 51 illegality. This writ petition is, therefore, dismissed. Pending miscellaneous applications,if any, shall also stand disposed of.
.
( Ravi Malimath ) Acting Chief Justice ( Jyotsna Rewal Dua ) Judge September 09, 2021 (rohit) ::: Downloaded on - 31/01/2022 23:02:55 :::CIS