Central Administrative Tribunal - Chandigarh
Dr Sajib Kumar Nandi vs M/O Human Resource Development on 8 August, 2017
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Central Administrative Tribunal
Chandigarh Bench, Chandigarh
0.A. No. 060/00378/2015
Chandigarh, this the 8h day of August, 2017
COARM: Hon'ble Mr. Justice M. S. Sullar, Member (J)
Hon'ble Mr. Uday Kumar Varma, Member (A)
Dr. Sajib Kumar Nandi son of Sh. Sushil Kumar Nandi, former
Junior Scientific Officer (Sports Medicine} O/o NSNIS, Sports
Authority of India, Moti Bag, Patiala, now resident of House
No. 143, Gali No. 7, Pathak Vihar Colony, Patiala.
» Applicant
(Argued by: Mr. Sanjeev Pandit, Advocate}
1,
ot
10.
Versus
Union of India through Secretary, Ministry of Human
Resource Development,., Department of Youth Affairs
and Sports, New Delhi, 8 >
Director Gerieral, Sports. Authority "of India (SA, JN,
my (Last Gate), New Delhi.
y of India. (SAN), J.N. Stadium,
ate}, | » New. Delhi.
Executive Direc
Punjab. ot 2,
R. P.Watal,. JAS,.F ormer "Director General of SAI, New
Delhi C/o. 'Secretary, . Sports 'Authority of IndiafSAn,
JN. Stadium; -Lodhi' Road" i CGoniples {East Gate}, New
Dethi. OSoy : . .
Sayan Chatter} jee, TAS" 5 (Reta), Former Director General
of SAI, New Delhi C/o Secretary, Sports Authority of
India(SAD, J.N.Stadium, Lodhi Road Complex (Hast
Gate), New Delhi.
Gopal Krishna, IAS, Former Director General of SAI,
_ New Delhi C/o Secretary, Sports Authority of India(SAQn,
J.N.Stadium, Lodhi Road Complex (Hast Gate}, New
Delhi. .
Jiji Thomson, IAS, Former Director General of SAI, New
Delhi C/o Secretary, Sports Authority of India(SAb,
J.N.Stadium, Lodhi Road Complex (East Gate), New
Delhi. :
KS. Bajwa, the than Inquiry Officer, C/o Secretary,
Sports Authority of India(SAN, J.N.Stadium, Lodhi Road
Complex (Fast Gate}, New Delhi.
. Respondents
Serer eh a PAE OL ae eth
asaya
ge
~ am O.A. No. 060/00375/2015
(By Advocate : Mr. P.C. Goyai for Respondents No. 1to4.
Ms. Pratima Choubey, proxy for Mr. Arvind
Moudgil, for Respondent No.5.
Respondents No.6to10 deleted vide order
Dated 5.5.2015).
. ORDER (ORAL)
Hon'ble Mr. Justice M.S. Sullar, Member (J) :
lL. The challenge mn this Original Application {OA}, preferred by the applicant Dr. Sajib Kumar Nandi, former Junior Scientific Officer (JSO) {Sports Medicine}, Patiala, is to the impugned orders dated 19.11.2013 (Annexure A-1), whereby he was removed from service by the Disciplinary Authority (DA), dated 10.7.2014 Annexure A- 2), by vi virtue of which his appeal 1 was cas 8 (Annexure A-50} vide 7 Inquiry Officer (.0.} and which Sh. K. 8. Bajwa \ Inquiry Report dated 27 6 >. 20138 9 (Annee A- 53).
2. _ Shorn off he nnecessary: y supertiuitis and irrelevant details, the crux'. of. the facts 'and 'material, which needs a controversy, involved in the instant O.A., and exposited from the record, is that the applicant while working as JSO at Netaji Subhash National Institute of Patiala (for brevity NSNIS) was transferred as such, to Sports Authority of India (Gn short, SAN), South Regional Centre, Bangalore, vide order dated 02.04.2005 (Annexure A-10), and he was relieved from official duty on 04.04.2005 (Annexure A-ll)}. But, instead of joining at Bangalore, he apphed for medical leave without any medical certificate from the authorized doctor and remained absent from duty till date.
According to the respondents, the applicant instead of joining his YN a O.A. No. 060/00375/2015 place of posting start ted making representations for cancellation of his transfer order, on the ground of victimization. Not only that, he made serious allegations against many officers, including the chair-person of sexual harassment committee and the then DG, SAI, ete. alleging conspiracy, fabrication of documents, criminal acts etc. against them, without any basis or ground or evidence.
3. Sequelly, in.view of the continued absence from duty, the applicant was served with a notice dated 07.04.2006, proposing to hold an enquiry against him, under Rule 14 of the Central Civil Service (Control Classification & Appeal) Rules, 1965, (hereinafter referred to as CCS LOCA) Rules, 1965} on the basis of imputation of misconduct and Articles: of Charges which were witnesses and ste documents sta) 'ment, ot defence. Although, he Officer and Sh. M.C. Sharma, Assistant Director, Bangalore, as Presenting Officer, vide order dated 04.01.2007. Since Sh. K. Ramachandran expressed his inability to continue with the inquiry due to his ill health, by his letter dated August 26, 2008, and then in his place Shri S.D. Bakshi, Deputy Director, was appointed as 1.0., by the competent authority. However, Shri S.D. Bakshi, vide letter dated 08.04.2009 requested that he had represented against him applicant) during his tenure as Assistant Director (Pers.}, therefore, he may be exempted from
-uo- O.A. No. 060/00375/2015 conducting the inquiry as the charged officer may allege bias against him. In view thereof, it was decided to appoint Mr. K.S. Bajwa, Joint Secretary (Retd) Department of Mines, vide order of May 13, 2009, as inquiry officer. The applicant immediately submitted letter dated 04.09.2009 to the LO., showing his intention not to further participate in the inquiry, alleging bias and unfair proceedings conducted by the 1O. He repeatedly made representation to the authorities in this regard. The D.A. rejected the representation for changing the 1L.O., by passing a speaking order of October 6, 2009, but still the applicant refused to attend the inquiry proceedings thereatter,, even though notices for every date of regular. hearing were sent to him. Thus, the 10. was forwarded to the ts ae te letter. of ad 25, 2010 with a request to submit his written representation to to the D. A. within 15 days from the receipt "the. inquiry' report. He failed to do so despite repeated requests. However, on May 10, 2010, he filed his reply.
4. After completion of the enquiry proceedings and after taking into consideration the report of the LO. and totality of the evidence on record, a penalty of reduction to a lower stage in the time-scale of pay by two stages for a period of three years with the direction that he will not earn increments of pay during the period of such reduction and also on expiry of the said period these three increments will not accrue for future fixation of pay, was imposed aN ~5- O.A. No. 060/00375/2015 on him. At the same time, the period of unauthorized absence from duty w.e.f. 04.04.2005 till his joining duty at Bangalore was ordered to be treated as dies-non for all purposes, inchiding the break in service vide order dated June 25, 2010 (Annexure A-40}, by the competent authority. Admittedly, the applicant has neither filed any appeal nor the earlier punishment order (Annexure A-40) was set aside by the Appellate Board and thus, attained finality, before filing of the instant O.A., relating to the second departmental inquiry against the applicant.
5. Surprisingly enough, the applicant again did not join and he remained willfully absent from dut ty. AS a consequence "That Dr. Saiib Kum Patiala to SAL.Southe report for duty at Ba:
against him and a«penalt sed .upeNn, him vide order dated 25.6.2010.. In the penalty.order the said"Dr: Nandi was.also directed to report for duty at® Bangalore on receipt of the' said order failing which further action shall be initiated against him.as per rule, But. till date Dr. Nandi bas-not® reported for duty at Bangalore. and is absent from daty in an unauthorized mariner w.ef. 26.6,2010-onwards.
Thus, Dr. Sajib Kumar Nandi,. SO. by remaining willfully absent from. duty has failed to maintain devotion to duty which tantamount to grave | misconduct: and an act of unbecoming an officer of SAI thereby contravened Rule 3(1)(i) &(ii} of CCS (Conduct) Rules 1904."
6. Likewise, the competent authority has appointed the
1.O, The applicant did not participate in the inquiry proceedings despite notices duly served on him, in this regard. The LO. recorded the evidences and ultimately came to the conclusion that the charges framed against the applicant stand duly proved, vide impugned inquiry report dated 27.05.2013 (Annexure A-53).
7. Agreeing with the findings of the LO., after completion of ali the codal formalities, having afforded an opportunity of meet Se peette nit AN Sa a &> O.A. No. 060/00375/2015 being heard to the applicant and after taking into consideration the entire material on record, a penalty of removal from service was imposed on the applicant, vide impugned order dated 19.11.2013 {Annexure A-l), by the _ competent authority. Similarly, an appeal filled by the applicant was also dismissed by the Appellate Board, by means of order dated 10.07 2014 (Annexure A-2)}. | a. Aggrieved thereby, the applicant has instituted the instant O.A., challenging the impugned orders, mainly on the ground that (i) initial t transfer order which formed the basis of the the: D. Bas "$0 the impugned conducted against, 'the, Televant "rules / instructions, so the and illegal.
9. Levelling a variety of allegations and narrating the sequence of events in unnecessary detail, in all, the applicant claimed that he was removed from service without his fault by the competent authority. On the basis of the aforesaid grounds, the applicant seeks the quashing of the impugned charge sheet, inquiry report and orders, in the manner indicated hereinabove.
10. On the contrary the respondents refuted he claim of the applicant and filed the written statement, wherein, it was pleaded pH 0.A. No. 060/00375/2015 that the present O.A. is devoid of merit and abuse of process of law. The applicant remained unauthorizedly absent from duty. Even, he did not participate in the enquiry proceedings and was rightly removed from Service, as per duly conducted departmental proceedings, in accordance with law. The earlier period of unauthorized absence of the applicant from 04.04.2005 to 25.06.2010 was treated as dies-non for all purposes, and he was directed to join his duty even after receipt of the said order. But, he did not intentionally join his duty. | Ll. According to the respondents, that the relevant authority has rightly 'examined the material, followed the due procedure as prescribed under the law and observed principies of report and impugned orders, 'the stad have. stoutly dermied all other allegations, atid" grounds 'contained in the OA, and prayed for it disrnissal.
12. Controverting the pleadings of reply filed by the respondents and reiterating the contents in the OA, the applicant has filed the rejoinder. That is how, we are seized of the matter.
13. Having heard the learned counsel for the parties, having gone through the relevant record and legal position, with their valuable help, we are of the firm view that the instant OA deserves to be dismissed, for the reasons mentioned herein below, AN } it ' \ e \
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14. Ex facie, the argument of learned counsel that the D.A. has not changed the enquiry officer despite repeated requests of the applicant, so the impugned orders are against the relevant rules & instructions and arbitrary, is not only devoid of merit but misplaced as well.
15. No doubt, the applicant moved an application dated 31.07.2009 (Annexure A-32) for change of the 1.0., K.S. Bajwa on unsubstantiated grounds. His request was duly considered and rejected, vide order dated 06.10.2009 (Annexure A-33)} by the then Director General, which, in substance, is as under.
"The request of Dr. S.K. Nandi, JSO (SM) for charge of the Inquiry Officer, Shri °K. 8. "Bajwa alleging bias has no substance as no © grounds for such: bias have been Shown. Ther pre} udice. An Inquit relevance-of the d ior he < Acne Officer and , "the » Hon'ble Supreme Court the tase: of Vishakha 8 Ors. Ve. State of Rajasthan, the judgement : is 'reported in the various books: 'containing Supreme Court Judgements and: "Dr. Nandi: cane always obtain it from these books. | Po.
The decision to fornia 'combined scientist's cadre was taken in the meeting of Regioial Directors held on 22/23 February, 1991, Consequently, the combined seniority list of scientific cadre was issued and circulated in February 1992. Shri Nandi had filed an OA No. 379/ PB/2003 before CAT, Chandigarh against the change of desi snation and the same was dismissed by the Hon'ble CAT. Shri Nandi is estopped from challenging "the change of designation at the time af your transfer as the same cannot be accepted after the said order of Hon ble CAT.
In view of the above, there are no grounds and-no proven - bias requiring any action to change the Inquiry Officer. The request of Dr. S.K. Nandi deserves to be rejected",
16. A perusal of the record would reveal that the applicant moved applications dated 21.10.2009 (Annexure A-34) and dated 23.10.2009 (Annexure A-35) for supplying the particular of the appropriate reviewing authority & for immediate stay of the enquiry proceedings, and to place Mr. L.S. Ranawat, Executive Cnet Dt teres ete
-~Go 0.A. No. 060/00375/2015 Director, Mr. Vineet Kumar, Assistant Director & P.O. and Mr. Sinder Pal Singh, Watchman, under immediate Suspension and order departmental enquiry into the incident of preventing him from entering the premises.
17. Be that as it may, the fact remains is that the applicant has neither challenged the order dated 06.10.2009 (Annexure A-33), rejecting his prayer for change of the [.O., nor approached the competent reviewing authority, in this relevant connection. Above all, there was no occasion or material to change the I.O., as it is now well settled principle of law that Lo.
cannot and indeed, should not be, changed at the sweet will of the charged officer and « on peculative grounds, : Wen:
fraid. and' cannot accept this appellate = vitiated Board was headed: by the 'Seoretary, Sports Ministry of Youth Affairs and Sports, whereas: the Joint Secretary, Higher Education and Secretary, SAI are its other members. Assuming fer the sake of arguments though not admitted), if any of members of the Appellate Board was junior to the D. A., even then the constitution of the Appellate Board cannot be said to be not in accordance with the rules, particularly when itis hea ded by the senior-most person Le. Secretary of Ministry of Youth Affairs and Sports. Thus, the contrary argument of learned counsel for the applicant has no force.
ge Due y
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19. Thus, it would be seen, rather proved on record that the applicant was transferred from Patiala to Bangalore, vide transfer order dated 02.04.2005 (Annexure A-10}. In pursuance thereof, he was relieved on 04.04.2005 (Annexure A-11), to enable him to join at Bangalore. Strangely enough, he did not join and remain willfully absent from his duty. The [st inquiry was. initiated against him, charges were duly proved and a penalty of reduction to a lower stage in the time-scale of pay by two stages for a period of three years, was imposed tipon him, vide order dated 25.06.2010 (Annexure A-40}, by the Competent Authority, which has already attained finality...
» The 'applicant did not participate in the i ry. proceedings despite 'due notice. The charges framed against him were found to be proved by the 1O., vide report dated 27.05. 20 13 (annexiife A "53
21. After completion of the enquiry proceedings, agreeing with the findings of the LO. and taking into consideration the fact that the applicant undoubtedly remained absent from his duty, the impugned penalty of removal from service was imposed upon him, vide impugned order dated 19.11.2013 (Annexure A-1}, by the D.A., which, in substance is as under:-
"2.0 An inquiry has since been conducted by a duly appointed Inguiry Officer, who has submitted his report dated 30.05.2013 ta the effect that the Article of Charge framed against Dr. Nanci stands proved. I have examined the Inquiry Report along with the enclosures, exhibits and the case records. It is seen from the Inquiry Report that despite several opportunities having been accorded to Dr. Sajib Kumar Nandi by the Inquiry Officer, he has chosen to remain absent during the regular hearings of the inquiry, thus pears nate ope
-U~ OLA. No. 060/00375/2015 denying himself the right of defence. However, | find fram the case records that the Inquiry Proceedings have complied with the substantive requirement of due process, Le. affording the charged official the opportunity of being heard and defend himself. The said Inquiry Report, in compliance to the due process, was forwarded to Dr. Nandi for his representation with reference to the findings of the report, which held him guilty of wilful and deliberate absence from duty since 26.06.2010.
3.0 Dr. Nandi has represented against the Inquiry Report vide his detailed letter dated 05.08.2013. The said representation has been examined in detail. It is seen that Dr. Nandi, instead of pointing out the reasons for his absence, or existence of any mitigating circumstances or disputing the allegation of absence, has gone on to narrate instances of his alleged persecution by the various officers in the Authority since 2005. | find that all such averments of Dr. Nandi are completely extraneous to the charge of his absence from duty since 26.06.2010. Nowhere in his representation has he alluded to the denial of the charge simpliciter that he remained absent in an unauthorized manner. The charge, which has since been proved in the inquiry, thus goes uncontested by the charged official even at this stage before me, when I am called upon to take cognizance of the proved charge and award the appropriate punishment. This goes on to establish that Dr. Nandi was not only unauthorizedly absent but that he also lacked good cause for the absence.
4.0. However, | deem it appropriate to briefly deal with Dr. Nandi's allegations of bias and conspiracy on the part of various officers of SAI in the past in order to have a comprehensive view about his.conduct as the charge of absenteeism against him is not only one of incident.but a continued one, Perusal of records reveals that there was an allegation of, al harassment against Dr. Nandi by his female 'collea m= ile he was. posted as Junior Scientific Officer * pursuant+te' which both the complainant-and DroN was posted as Ju Centre,.Bangalore :
é tran, c Officer at. SAL Southern Regional Qne fact, which starkly hat.Dr. Nandi has, for whatever avork from 04.04.2005 when he under Rule 14 of CCS (CCA} Rules, 1965. The said Inquiry was sought to be scuttled by Dr. Nandi on some pretext or the other, alleging bias against the 10, PO anc almost every other authority of SAL, with the result that the inquiry was conducted ex-parte on. the basis of documentary evidences and the inquiry Report was submitted on 10.32.2010. It is seen from the records that this Inquiry coraplied with the requirements of natural justice in as much as the Inquiry Report was then also sent to Dr. Nandi for his representation against the findings. The then Disciplinary Authority ie DG,SAT, after considering the Inquiry Report and other associated documents and records and the submissions of Dr. Nandi,. passed a comprehensive and speaking order dated 25.06.2010, categorically holding that Dr. Nandi was guilty of defiance of order of transfer and remaining absent from duty without authority, for the said guilt, the then DG, SAI imposed on Dr. Nandi a penalty of reduction of wages by two stages for a period of three years. It was further held that his period of unauthorized absence from duty w. ef. 04,04,.2005 til his joining duties at Southern Regional Centre, Bangalore be treated as 'Hes Non' for all purposes including a break in service It was also directed in the said order that in case Dr. Nandi does not join his duty even after receipt of the said order dated 25.06.2010, further action may be initiated as per rules.
5. Records reveal and has also been pointed out by the Inquiry Officer that Dr. Nandi duly received the aforesaid order dated 25.06.2010. However, he bas chosen not te appeal against the said CL seneentt cage TT Tee eee ~T a. O.A. No. 060/00375/2015 order and has also not complied with the said order. There have also been reminders to Dr. Nandi, post the penalty order asking him to join, which directions have not yet been complied with. It is, therefore, clear that Dr. Nandi's conduct in not joining his duties from 26.06.2010 has been wilful and intentional, the wilfulness being characterized by (1) a wrongful or perverse attitude and (2) the order violated being lawful, reasonable and having been made known to hirn and pertaining to the duties which he had been engaged to discharge. -
6.0 1, therefore, hold Dr. Sajib Kumar Nandi guilty of grave misconduct on account of his wanton disregard of a lawful order by.
the competent authority and wilful, persistent, concerted and deliberate refusal of authority in remaining absent from duty. Dictionary meanings of the word "Misconduct" are improper behaviour, intentional wrong doing or deliberate violation of rules of standard behaviour in so far as the employee's express or implied obligations towards the employer is concerned. From a conspectus of the entire situation, I further hold Dr. Nandi to be guilty of gross insubordination that goes beyond mere isolated incident of wilful disobedience of lawful orders. Such misconduct goes to the root of the contract of employment so as to cause a fundamental and radical breach of contract which is inimical to and subversive of the 7 saree £, FR 17{A}Giii}). With «this 'penalty, Dr. Nandi forfeits. any salary, allowances or cofsequential benefits during the period of his absence and would not<cbe entitled. for any pensicnary benefits including femnily pension, gratuity and leave encashment due to him ag on date and his na hall-be struck off from the rolls of SAI.
It is ordered accordingly oP get oe t Sequelly, the appeal Appellate Board, vid {Annexure A-2),
22. Therefore having completed all the . codal formalities, the D.A. has correctly imposed the penalty éf removal from service upon the applicant, which was duly affirmed by the Appellate Board. Hence, the indicated misconduct against the applicant is duly proved, particularly when it is not his case that he ever joined his duty, after his transfer to Bangalore. In that eventuality, it cannot possibly be saith that any prejudice has been caused to the applicant, in this relevant connection.
2 3Moreover, the Hon'ble Apex Court in the case of U.O.1 & Others Vs. Bishamber Das Dogra (2009) 13 SCC 102 has ruled that in case of misconduct of grave nature or indiscipline, even in absence of statutory rules, the authority may take into
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consideration the indisputable past conduct/ service record. of the employee for adding the weight to the decision of imposing the punishment, if the facts of the case so require. It was also held that habitual absenteeism means, gross violation of discipline.
24. Another unsuccessful attempt has been made by learned counsel that the absence of the applicant was not willful, as he had applied for medical leave. This argument is again not tenable and deserves to be dismissed for more than one reason. At the first instance, the relevant authority has rightly did not sanction the leave of the applicant for want of any adequate medical certificate of the competent doctor. The applicant cannot claim illness leave asa' matter of right;"as contemplated under Rules 7 and 19 of Centr: cc Ss Leave Rules), 1972,
25. In this'max ce nnotescape his liability leged eave application, duty, particularly when the.
duly proved on record; as 'discussed herein above. _
26. What cannot: possibly. be disputed here is that willful misconduct. The Hon'ble Apex Court in the case of Mithilesh Singh Vs. Vs. U.O.1. & Others AIR 2003 SC 1724 has ruled that absence from duty without prior intimation is a grave offence warranting removal from service. Similarly, the Hon'ble Supreme Court in the case of State of U.P. and Others Vs. Ashok Kumar Singh (1996) 1 SCC 302, held that absence of the respondent from duty would amount to grave misconduct and there was no Sooo' ;
So justification for the High Court to interfere with the punishment jy 0.A, No. 060 /00375/2015 holding that the punishment was not commensurate with the gravity of the charge. | al. The reliance in this regard cari also be placed on the judgments of the Hon'ble Apex Court in the cases of North Eastern Karnataka Road Transport Corporation vs. Ashappa, (2006) 5 SCC 137 and State of Rajasthan vs. Mohd. Ayub Naz:
2006 SCC (L&S) 175, wherein, it. was held that habitual absenteeism can be a valid ground for dismissal of an employee from service. Absenteeism from office for a prolonged period of time without prior permission by government servants has become a principal cause of indiscipline which has greatly affected various government services ) -Mmitigate the rampant Board have correctly appreciated. "the: 'matter | in the right perspective. In this backdrop, i cannot possibly be saith that the behalf.
29. Furthermore, the jurisdiction of judicial review of this Tribunal in such disciplinary matters is very limited. The Hon'ble Apex Court while considering the jurisdiction of judicial review and rule of evidence in the case of B.C. Chaturvedi Vs. U.O.1. & Others AIR 1996 SC 484 has ruled as under:-
"19. 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 eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether -
rviee: without intimation ~\ oe _\e- 'OA. No, 060/00375/2015 the inquiry was held by a competent officer or whether rules of natural justice be 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 same 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 office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the 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 of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as na reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case. 13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co- extensive power to re-appreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. ide 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°: {AIR 1964 SC 364), this Court held at' page 728..(of 5! fat p 369 of AIR}, that if the conchision, upon the evidence, reached by the '7 or suffers from patent error on * based on-ne evidence at all, a writ of Adequacy of -eyidence .o the face ofthe recorc certiorari could be is evidence has ruled as under:-
"O, Regarding the appellant's contention that there was no evidence to substantiate the charge against him, it may be observed that neither the High Court nor this Court can reexamine and re-assess the evidence in writ proceedings. Whether or not there is sufficient evidence against a delinquent to justify his dismissal from service is a matter on which this Court cannot embark. 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 staternents 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 P. aeteeeggrne On a So 0.A. No. 060/00375/2015 SL Khada-bazar police station, Belgaum, on November 21, 1961 (which revealed appellant's complicity m the~ smuggling activity) but when asked to explain as to why he made that statement, he expressed his inability to do so. The pr esent case . is, in our opinion, covered by a decision of this Courtin State of Mysore v. Shivabasappa, (1963) 2 SCR 943 = AIR 1963 SC 373 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 procedure which govern proceedin 1gs 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 who 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 conducted in accordance with the procedure followed in courts. 2. In respect of taking the evidence in an enquiry before such titbunel the person against whom a charge is made shauld 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 it 1b The position is the same when a witnes by him behind the:
case that the co repeated by the 'wotn sentence, issto insist 0 justice are "matters sufficiently complie with oowhe witnessés: are read er to them, marked on their admission, copies thereof' 'given, td: the person : charged and he is given an opportunity to era s-examine them."
3h. a therefore, "taking: nto. cortéiderstion the material and evidence on record and the legal position, as discussed herein above, we are of the considered opinion that the 1.0. has correctly evaluated the evidence of the prosecution. 'The D.A. has rightly imposed the indicated punishment, which was upheld by the Appellate Board. The DA as well 2 as Appellate Board have recorded cogent reasons and examined the matter in the right perspective. We do not find any illegality, irregularity or any perversity in the impugned orders. Hence, no interference is warranted in this case by this Tribunal, in the obtaining circumstances of the case.
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32. No other point, worth consideration, has been urged or pressed by learned counsel for the parties.
33. In the light of the aforesaid reasons and thus seen from any angle, as there is no merit and the instant OA deserves to be and is hereby dismissed, as such, However, the parties are left to bear their own costs.
¥ ( -
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{UDAY KUMAR VARMA) (JUSTICE M.S. SULLAR) MEMBER (A) | MEMBER (J) Dated: 08.08.2017 Thaw