Calcutta High Court (Appellete Side)
Bhubaneswar Das vs Union Of India And Ors on 2 September, 2025
IN THE HIGH COURT AT CALCUTTA
CIVIL APPELLATE JURISDICTION
APPELLATE SIDE
Present:
THE HON'BLE JUSTICE SUJOY PAUL
&
THE HON'BLE JUSTICE SMITA DAS DE
MAT 336 of 2022
BHUBANESWAR DAS
VS.
UNION OF INDIA AND ORS.
Appearance:
For the appellant : Mr. K.B.S. Mahapatra, Adv.
Mr. Aditya Shit, Adv.
For the Union of India : Ms. Chandreyi Alam, Adv.
Heard on : 02.09.2025
Judgment on : 02.09.2025
Sujoy Paul, J.:
1. This intra court appeal assails the order of learned Single Judge passed in WPA 17108 of 2004 decided on 13th September, 2021 whereby learned Single Judge has declined interference on the disciplinary proceedings and on the punishment of removal from service which was upheld by the appellate authority.
Back Ground Facts-
2. In short, the relevant facts for adjudication of this matter are that the appellant was initially appointed in Central Reserve Police Force (CRPF), Durgapur on 12.7.1996. On 3.4.1984, he was injured in a firing by terrorists 2 while remained posted in Punjab. The appellant was given gun wound medal because of the said incident.
3. The appellant was informed that he will be able to perform telephone duty and, therefore, he was not sent on pension whereas four other personnel who suffered injuries along with appellant and got said medal were sent on pension.
4. The appellant was placed under suspension on 12.12.1971. The same was followed by a charge-sheet issued on 15.1.1992. The appellant denied the charges in toto by filing reply on 25.1.1992. Dissatisfied with the reply of the appellant, the disciplinary authority appointed an inquiry officer. The inquiry officer after recording the evidence submitted his report on 30.4.1992. The appellant preferred a representation to the disciplinary authority against the report of the inquiry officer. The learned disciplinary authority by order dated 19.1.1993 inflicted the major punishment of removal from service.
5. Aggrieved, the appellant approached this court in CO 3628(W) of 1993 which was decided on 7th February, 2002. Admittedly, the writ petition was dismissed by reserving liberty to prefer an appeal under Rule 28 of the CRPF Rules of 1955.
6. In turn, the appellant preferred a detailed appeal which came to be dismissed by order dated 2nd September, 2004.
7. In WPA 17108 of 2004, the appellant assailed the disciplinary proceeding, the punishment of removal and also the aforesaid appellate order. The learned Single Judge after hearing the parties dismissed the said writ petition. Contention of appellant -
MAT 336 of 2022 S.P.J. & S.D.D.J 3
8. The learned counsel for the petitioners submits that in the instant departmental enquiry, the disciplinary authority has not appointed any presenting officer to present the case of the prosecution. The enquiry officer played the role of presenting officer and enquiry officer simultaneously. Thus, he acted as a prosecutor and a judge and for this reason alone, departmental enquiry stands vitiated.
9. Learned counsel for appellant submits that two charges were alleged against the appellant in the charge-sheet dated 15th January, 1992. The appellant was exonerated from charge no.2 by the inquiry officer and disciplinary authority did not disagree with the said finding of the inquiry officer. However, the appellant was held guilty for charge no.1.
10. By placing heavy reliance on the language employed in Article 1 of charge- sheet, learned counsel for appellant submits that allegation against the appellant is that for the purpose of managing recruitment of two personnel in CRPF as Constable, namely, Gopal Das and Tarakeshwar Kewat, appellant took Rs.24,000/- as bribe from them with mala fide intention which is against the conduct Rule.
11. Learned counsel for appellant submits that appellant was only a security aid of a Member of the Recruitment Board and he himself was not a Member of the Board. In the departmental inquiry no, evidence could be produced to show that appellant had taken bribe to manage recruitment of said two personnel. In absence thereof, the allegations cannot be said to be proved. The nature of allegation in charge no.1 shows that it is a serious allegation relating to corruption and, therefore, this allegation needs to be proved to the MAT 336 of 2022 S.P.J. & S.D.D.J 4 hilt. Reliance is placed on the judgment of Supreme Court in Union of India & Others v. Gyan Chand Chattar reported in (2009) 12 SCC 78.
12. The next submission is based on the judgment of Supreme Court in M/s Glaxo Laboratories (I) Ltd. v. Presiding Officer, Labour Court, Meerut and Others reported in (1984) 1 SCC 1 and Prahallad Padhi v. Secretary, Department of Water Resources, Bhubaneswar & Ors. reported in 2009 LAB. I.C. 2182. These judgments were relied to contend that the allegation of taking bribe is at a place which was outside the place of employment. Unless a casual connection and nexus with the conduct and the employment is established, the allegation does not constitute a 'misconduct' under the relevant Rules. It is also faintly argued that the language of charge-sheet does not show that it is an allegation. Instead it is of a definite nature which shows that at the stage of issuance of a charge-sheet itself, the disciplinary authority had made up his mind.
13. To support this contention, the learned counsel placed reliance on the judgment of Supreme Court in State of Odisha and Another v. Satish Kumar Ishwardas Gajbhiye and Others reported in (2021) 17 SCC 90.
14. The bone of contention of learned counsel for the appellant is that since appellant was nowhere involved in the recruitment in CRPF and it could not be established with necessary clarity that appellant had taken bribe and that too for the purpose of securing employment of two persons, the finding of inquiry officer is not based on evidence and it is perverse in nature.
15. The impugned order of appellate authority dated 2nd September, 2004 was criticized by contending that in the appeal memo, the appellant in sufficient MAT 336 of 2022 S.P.J. & S.D.D.J 5 details projected that he was only assisting his officer and was not part of the Recruitment Board.
16. If any favour in the recruitment process was made, the responsible officers will be the officers who were manning such Recruitment Board. However, no action has been taken against anybody and appellant alone was picked up and chosen for an unwarranted extreme punishment of Removal from service.
17. The order of learned Single Judge was called in question by contending that learned Single Judge has not considered the aspect that the finding of inquiry officer accepted by disciplinary authority is based on surmises and conjectures.
18. In a case of no evidence, interference ought to have been made. Contention of Department --
19. Learned counsel for the department submits that admittedly the appellant was exonerated from charge no.2. The charge no.1 itself is very grave and two persons, namely, Gopal Das and Tarakeshwar Kewat who had given bribe to the appellant entered the witness box and supported the story of the prosecution.
20. Thus, it is not a case of no evidence.
21. In departmental inquiries, the principle of 'preponderance of probability' is applicable and the principle of 'proof beyond reasonable doubt' applicable for criminal case is clearly inapplicable. The prosecution could establish the said charge and 24,000/- Rupees were indeed recovered from the appellant. The appellant could not give any plausible explanation of possessing that huge MAT 336 of 2022 S.P.J. & S.D.D.J 6 amount of Rs. 24,000/- and, therefore, inquiry officer has not committed any error in holding that charge no.1 is proved. The disciplinary authority and appellate authority after considering the inquiry report and evidence on record rightly opined that appellant is indeed guilty of charge no.1.
22. The learned counsel for department fairly submits that the punishment imposed is also commensurate to the misconduct. The appellant was rather leniently dealt with and, therefore, in place of imposing the punishment of 'dismissal' from service, punishment of 'removal' was imposed so that appellant can get employment elsewhere. She supported the disciplinary proceedings, the punishment and appellate orders.
23. No other point is pressed by learned counsel for the parties.
24. We have heard the parties at length and perused the record. Analysis -
E.O. & P.O. Simultaneously:
25. The learned counsel for the petitioners assailed the departmental enquiry on the ground that in absence of appointment of presenting officer, the enquiry officer assumed the role of prosecutor as well and, therefore, enquiry stands vitiated. This point is no more res integra. A Division Bench of MP High Court in the case of Union of India vs. Mohd. Naseem Siddiqui (ILR 2004 MP 821) held that merely because no presenting officer is appointed, enquiry cannot be treated as vitiated unless it is established with clarity that enquiry officer has actually assumed the role of presenting officer and took burden on his shoulders to prove the charges. Speaking for the Bench R.V. MAT 336 of 2022 S.P.J. & S.D.D.J 7 Raveendran, C.J. (as His Lordship then was) laid down the acid test to determine when enquiry will stand vitiated. The relevant para reads thus:
(i) The Inquiry Officer, who is in the position of a Judge shall not act as a Presenting Officer, who is in the position of a procutor.
(ii) It is not necessary for the Disciplinary Authority to appoint a Presenting Officer in each and every inquiry. Non-appointment of a Presenting Officer, by itself will not vitiate the inquiry.
(iii) The Inquiry Officer, with a view to arrive at the truth or to obtain clarifications, can put questions to the prosecution witnesses as also the defence witnesses. In the absence of a Presenting Officer, if the Inquiry Officer puts any questions to the prosecution witnesses to elicit the facts, he should thereafter permit the delinquent employee to cross-examine such witnesses on those clarifications.
(iv) If the Inquiry Officer conducts regular examination-in-chief by leading the prosecution witnesses through the prosecution case or puts leading questions to the departmental witnesses pregnant with answers, or cross-examines the defence witnesses or puts suggestive questions to establish the prosecution case employee, the Inquiry Officer acts as prosecutor thereby vitiating the inquiry.
(v) As absence of a Presenting Officer by itself will not vitiate the inquiry and it is recognized that the Inquiry Officer can put questions to any or all witnesses to elicit the truth, the question whether an Inquiry Officer acted as a Presenting Officer, will have to be decided with reference to the manner in which the evidence is let in and recorded in the inquiry.
(Emphasis Supplied) MAT 336 of 2022 S.P.J. & S.D.D.J 8
26. In the instant case, the depositions of witnesses have not been filed by the petitioners. No evidence is brought to our notice which shows that the enquiry officer has assumed the role of the prosecutor and, therefore, enquiry cannot be held to be illegal on this account. It is noteworthy that judgment of MP High Court in Mohd. Naseem Siddiqui (supra) was approved by the Supreme Court in Ram Lakhan Sharma ((2018) 7 SCC 670). Thus, this point is decided against the petitioner.
27. In the charge-sheet two charges were leveled against the appellant which are reproduced for ready reference:
ARTICLE - I "That No.761150293 Ct Bhubaneswar Das of GC, CRPF, Durgapur, while functioning as such had committed grave misconduct/remissness under Section 11(1) of CRPF, Act, 1949 read with Rule 27 of CRPF Rules 1955, in that while he was detailed as security aide of Shri Alim Khan AC. Member-II of recruitment Board No.1 detailed for recruitment of CT(GD) against normal wastage 3rd Quarter ending 1991 from Malda, Jalpaiguri, Raiganj, Darjeeling of West Bengal State w.e.f. 25.10.1991 to 10.11.1991 managed recruitment of two personnel in CRPF as Constable namely Gopal Das and Tarakeshwar Kewat by taking Rs.24,000/- as bribe from them with malafide intention which is against the Rule and to the good order and discipline of the Force.
A R T I C L E - II That No. 761150293 CT. Bhubaneswar Das of GC. CRPF, Durgapur while functioning as such had committed grave misconduct/remissness under Section 11(1) of CRPF Act, 1949, read with Rule 27 of CRPF, 1955, in that he managed recruitment of Gopal Das and Tarakeshwar Kewat who were in possession of false educational certificate. That the above No. 761150293 Ct. Bhubaneswar Das was fully aware of the fact that Gopal Das and Tarakeswar Kewat were in possession of false educational certificate but inspite of that he had suppressed the facts wilfully and cheated the Govt. Which is considered prejudice to the good order and discipline of the Force." (Emphasis Supplied)
28. Undisputedly, the appellant is acquitted by the department from Article of Charge No.II.
MAT 336 of 2022 S.P.J. & S.D.D.J 9
29. Thus, this court is only obliged to consider the validity of disciplinary proceedings and punishment and appellate order in relation to charge no.1.
30. A microscopic reading of charge no.1 leaves no room for any doubt that specific allegation against the appellant was that he managed recruitment of two personnel by taking bribe of Rs.24,000/-.
31. Thus, allegation is very clear that bribe was taken for a specific purpose i.e. for 'managing recruitment'.
I.Os. Findings:
32. Curiously, the inquiry officer in relation to this charge recorded his findings as under:
"IV) There is no witness or documentary evidence to proof his. Here the charge in CT B. Das accepted money as bribe and not to whom or how he expanded/paid. P.W. IV. Insp. A.R. Sharma who was doing the duty of SM.
Admitted that CT. B. Das gave Rs.11,000/- will be handed over immediately. (PW/IV/EX.I). The P.Ws. IV, V, VI & VII, in Insp. A.R. Sharma, ST(M), M.C. Chanda, SI(M) D.Ghosh and CT. B. K. Sharma, were present at the time CT. B. Das handed over Rs.11,000/- . There is no documentary proof with Gopal Das and T. Kewat , that CT B. Das accepted money from that but, then the question arises that, how CT. B. Das described a huge amount like Rs.11,000/- immediately. He is only a Constable. In Ct. B. Das statement he described how he accumulated Rs.11,000/-. He borrowed Rs.4,000/- from the relative and Rs.7,000/- from a Jewelary shop at Money by depositing his wife's Jewellaries, with the anticipation of delivery. It is very imanging that Constable keeps Rs.11,000/- as an anticipatory measurement of h is wife's chherring. Nobody can afford this type of huge amount being a constable." (Emphasis Supplied)
33. The inquiry officer, in no uncertain terms, recorded that there is no witness or documentary evidence to prove this. Thereafter, he solely relied upon the aspect of recovery of Rs.24,000/- from the appellant. The explanation given by the appellant regarding possession of that money was disbelieved by the inquiry officer and he opined that an employee of the level of Constable cannot afford to keep the huge amount with him. Legal Test:
MAT 336 of 2022 S.P.J. & S.D.D.J 10
34. Before dealing with the findings of enquiry officer which was accepted as such by Disciplinary and Appellate Authority, it is apt to remind ourselves about the relevant principles for the purpose of examining the enquiry officer's report. The Enquiry Officer must base his report on evidence on record and he cannot record the guilt on mere suspicion. Suspicion, however strong it may be, cannot take the place of proof. (See Union of India vs. H.C. Goel (1963 SCC OnLine SC 16), Nand Kishore Prasad vs. State of Bihar (1978 SCR (3)
708), Roop Singh Nagi vs. Punjab National Bank (2009 (2) SCC 570) and Division Bench judgment of MP High Court in the case of Union of India vs. V.K. Girdonia (2002 SCC OnLine MP 407). This is equally settled that finding of enquiry officer cannot be his mere ipse dixit (see Anil Kumar vs. Presiding Officer (1985 (3) SCC 378 and Roop Singh Nagi (supra).
35. If aforesaid finding of enquiry officer is tested on the anvil of these principles, it will be cleared like noon day that no witness or documentary evidence could be produced by the prosecution to establish the charge no. 1. The enquiry officer held the appellant as guilty merely because 24 thousand rupees were recovered from a constable and his explanation for possessing this 'huge amount' was not found to be satisfactory by the enquiry officer. The enquiry officer thus, based on his finding on suspicion and has not recorded guilt on the basis of any specific evidence. This course adopted by the learned enquiry officer cannot be countenanced.
Burden of Proof:
36. The aforesaid finding of enquiry officer suffers from another infirmity. He failed to follow the settled principle that burden to establish a charge even in a MAT 336 of 2022 S.P.J. & S.D.D.J 11 domestic enquiry is on the shoulders of the prosecution. The delinquent employee by no stretch of imagination was required to prove his innocence. The burden cannot be shifted on the defence to disprove the charge. The Apex Court in Nirmala J. Jhala ((2013) 4 SCC 301) opined as under.
"39. More so, the High Court has reached the conclusion by shifting the burden of proof of negative circumstances upon the appellant. The High Court has erred by holding that in respect of the incident dated 17-8-1993 i.e. demand of amount, it was the duty of the appellant to explain the said circumstance, and that instead of giving any satisfactory explanation in respect of entry of Shri C.B. Gajjar, she had completely disowned and denied any such occurrence. The onus was always on the Department to prove the said circumstance. The Court should have also taken note of the fact, that the matter was adjourned for 28-8-1993, and being a 4th Saturday, it was a holiday. The Court further committed an error by holding, that the failure to challenge the most crucial element of the evidence, regarding the incident of 17- 8-1993, in respect of a demand of bribe of Rs. 20,000 fully justified the findings of the enquiry officer. Again, the High Court shifted the onus to prove a negative circumstance on the appellant.
52.3. The High Court erred in shifting the onus of proving various negative circumstances as referred to hereinabove, upon the appellant who was the delinquent in the enquiry."
(Emphasis Supplied)
37. In view of foregoing discussion, in our judgment, the enquiry officer proved the charge no. 1 solely based on suspicion, surmises and conjectures. Thus, the said report cannot become a reason to punish the appellant. Hence, the order of disciplinary authority, appellate authority and learned Single Judge deserves to be interfered with.
Misconduct & proximity principle:
38. So far argument based on the judgments of M/s Glaxo Laboratories (I) Ltd. and Prahallad Padhi is concerned, we are only inclined to observe that even if the alleged misconduct takes place outside the premises of the employer, that by itself does not exonerate the employee from allegations of misconduct. If employer is in a position to establish with accuracy and precision that the misconduct has a casual connection/nexus with the MAT 336 of 2022 S.P.J. & S.D.D.J 12 employment, even if incident had taken place outside the premises, it is indeed a 'misconduct'. As noticed above, in this case the employer has miserably failed to establish in the departmental inquiry that appellant was instrumental in managing recruitment of two personnel by taking bribe.
39. Interestingly, no action has been taken against any officer who was part of the Recruitment Board and appellant was picked up and chosen for imposing an extreme punishment of removal from service.
Benefits:
40. As analyzed above, the order of dismissal dated 19.1.1993 and also the order affirming it by appellate order and by order of learned Single Judge on 13.9.2021 deserves interference. Resultantly, the order of punishment dated 19.1.1993, the appellate order 02.09.2004 and order of learned Single judge dated 13.9.21 are set aside. Petitioner in the writ petition nowhere pleaded that he was not gainfully employed after suffering the punishment of removal from service. In U.P. State Brassware Corpn. Ltd. Vs. Uday Narain Pandey ((2006) 1 SCC 479) Apex Court held as under:
"61. It is not in dispute that the Respondent did not raise any plea in his written statement that he was not gainfully employed during the said period. It is now well-settled by various decisions of this Court that although earlier this Court insisted that it was for the employer to raise the aforementioned plea but having regard to the provisions of Section 106 of the Evidence Act or the provisions analogous thereto, such a plea should be raised by the workman."
(Emphasis Supplied)
41. Similar view was taken in Kendriya Vidyalaya Sangathan vs. S.C. Sharma ((2005) 2 SCC 363), it is held as under:
"16....When the question of determining the entitlement of a person to back wages is concerned, the employee has to show that he was not gainfully employed. The initial burden is on him. After and if he places materials in that regard, the employer can bring on record materials to rebut the claim. In the MAT 336 of 2022 S.P.J. & S.D.D.J 13 instant case, the respondent had neither pleaded nor placed any material in that regard." (Emphasis Supplied) and in Deepali Gundu Surwase vs. Kranti Junior Adhyapak Mahavidyalaya ((2013) 10 SCC 324). Thus, appellant who has crossed the age of superannuation is not entitled to get any backwages. However, upon holding the removal order as illegal, we deem it proper to direct that petitioner shall be treated to have retired in normal course and from the date of his retirement, he shall be entitled to get all pensionary and consequential benefits. It is clarified that this judgment shall not reap any arrears of backwages from the date of removal to the date of his retirement. This judgment be complied with within 90 days from its communication.
42. The appeal is partly allowed to the extent indicated above.
(SUJOY PAUL, J.) I agree.
(SMITA DAS DE, J.) MAT 336 of 2022 S.P.J. & S.D.D.J