Central Administrative Tribunal - Kolkata
Sanjit Madhu vs Police on 2 February, 2022
"CENTRAL ADMINISTRATIVE TRIBUNAL
KOLKATA BENCH .
0.A,/35¥/00806/2021 - DATE OF DECISION: 020 02302
SANJIT MADHU....ccssssosseeseesesesesseeseesnenss cecesaeecaseneneen A ppplicant/s.
MR. G.-B.KUMAR...seecsrees ecssecseeen "eceesvasnareeeesen Advocate for the applicant(s
- Versus -
" POLICE... .cccccecesccceseveeceeetesreeseeeneaedenrenenees « ccceuenusuarseecusesauasenusesneedes . .Respondent/s
MREK RAO. ccccsccsceeceeceesseseeneeneesenass sevclecsespusteueet Advocate for the Respondent/s~
CORAM : HON' BLE MS, BIDISHA BANERJEE, JUDICIAL MEMBER
HON BLE DR. (MS.} NANDITA CHATTERJEE, ADMINISTRATIVE MEMBER
Whether Reporters of local newspapers may be allowed to see the
~ Judgment? a Yes/No
/* Whether to be referred to the Reporter ornot? "Yes/No +
A
Whether their Lordships wish to see the faircopy .
' of the Judgment? oo Yes/No
CENTRAL ADMINISTRATIVE TRIBUNAL |
_ KOLKATA BENCH, KOLKATA _-
(Through Audio/Video Conferencing) { (i {ii Ba ne
' Q,A. 351/00806/2021 --
;
0.A/35/00806/2021 : . Date of Order: 2.22022.
Coram: Hon'ble Ms. Bidisha Banerjee, Judicial Member
Hon'ble Dr. (Ms.) Nandita Chatterjee, Administrative Member
In the matter of :
Shri Sanjit Madhu, son of Late Suren
Madhu, Resident of Nayagaon, Port Blair
Tehsil, South Andaman District.
esessaes Applicant
-Versus-
1. Union of India, through the Secretary,
Ministry of Home Affairs, Govt. of India,
Central Secretariat, North Block, New Delhi-
110001. |
2. The Andaman & Nicobar Administration,
through the Chief Secretary Secretariat,
Port Blair-744101. a
3. The Director General of Police, Police
Headquarters, Atlanta Point, Port Blair-
744101. |
4. The Superintendent of Police, South
Andaman District, Port Blair-744101.
seeeeees Respondents
For The Applicant(s): Mr. G. B. Kumar, Counsel
For The Respondent(s): Mr. K. Rao, Counsel
2 QA, 354/00806/2021 "
ORDER(ORAL)
Per: Hon'ble Ms. Bidisha Banerjee, Judicial Member
1. The applicant, a Police Constable, has preferred this O.A. to seek the following
- relief :-
"A).1. An order be passed to rescind, recall, withdraw Order Book No, 4 dated 02.01.2017 passed by the respondent No. 4 whereby found the applicant guilty and imposed the punishment of withholding of his future increment for a period of two years with cumulative effect and also held that the ~ suspension period of the applicant shall be treated as not spent on duty for all intended purpose. .
il. An order be passed setting aside the Order Book No, 1579 dated'29.04.2021 passed by the respondent No. 3 whereby the | respondent No. 3 modified the Order Book No. 4 dated 02.01.2017 passed by the respondent no. 4 and enhanced the 'punishment of the applicant by imposing punishment of reversion of the applicant to the sustentative rank of Police Constable for a period of five years and postponement of the future increment of pay of the applicant during the penalty period until the same is restore.
I. An order be passed directing the respondent authorities to pay all the benefits to the applicant which.are due from the aforesaid proceedings on and from August, 2015 to the _applicant in accordance with law.
B) An order be passed directing the respondent authorities to transmit the original records of the case before this Hon'ble court, so that after perusing the same conscionable justice may be rendered to the applicant.
¢}. Any other relief or reliefs, order or orders, direction or directions as your Honor deem fit and proper."
2. The gravamen of the indictments against the applicant are as under :-
" That, on 28/8/2015 HC/733 Sanjit Madhu (u/s) felicitated an election ' candidate of Manpur village namely Sanjay Chakraborthy for arranging 115 nos. of 750 ml !MFL bottles from Hotel Raj Prakash, Lamba Line for the purpose of canvassing during the Municipal & Panchayat Election-2015 when the model code of conduct had come into force. Accused Sanjay Chakraborthy S/o Late S. Chakraborthy (40) yrs R/o Manpur was apprehended by the police personnel of Minni Bay picket in the early morning of 29/08/15 and recovered 115 bottles of 750ml IMFL bottles from his possession and accordingly a case vide crime No. 582/15 dtd. 29/08/15 U/s 32/Reg Ill of 1876 has been registered at PS Aberdeen against Sanjay Chakraborthy.
ie
3 O.A. 351/00806/2021 -.
| And whereas, such an act on the part of HC/733 Sanjit Madhu (U/S) by felicitating an accused person in arranging large quantity of. liquor bottles-during the time of election period when the model code of conduct had come into force and he being.a person of uniformed force constitute grave misconduct: and gross indiscipline and is 'in contravention of the mandatory. provisions under Rule 8.4,8.45,8.46 and 8.47 of A&N Police Manual, 1963, thereby rendering him liable for punishment under Rule 9.3 of said Police Manual.
, . 3. The admitted facts culled out from the pleadings would be thus :-
The applicant Shri Sanjit Madhu was appointed as Police Constable in A &N Police Department on 02/08/1999 and was promoted to the rank of 'Head Constable on 24/01/2011. 7 On 29/08/2015 at about 0400 hrs. the staff of Police Station Aberdeen at picketing duty near Minnibay, arrested one Shri Sanjoy | Chakraborthy for carrying 115 Nos. of 750ml IMFL bottles in his Car bearing Reg. No. AN-O1 F-1747. A case vide Crime No. 582/15 dated '29/08/2015 U/s 32 of the A & N Islands Regulation- aT of 1876 was registered at Police Station Aberdeen. .
. During investigation of the above case Crime No. 582/15 dated 29/08/2015 U/s 32 of the A&N Islands Regulation- "tl of 1876. The accused Sanjoy Chakravorthy disclosed the name of the applicant Shri Sanjit Madhu | for facilitating him in arranging room in his favour at Hotel Raj Prakash, Lambaline and the said amount of liquor bottles for distribution of the same during the election campaign at Manpur village, under South Andaman District, The said information was furnished by the then Station House Officer, Police Station Aberdeen through Fax message dated 29/08/2015 to the Superintendent of Police South Andaman district.
The applicant was placed under suspension vide Order Book No. 569 dated 31/08/2015 by the Superintendent of Police, South Andaman District being Disciplinary Authority a preliminary enquiry was ordered on 03/09/2015. The enquiry officer, Sub-Inspector, V. P.- Mishra of Police . Station Aberdeen submitted his report on 10/10/2015 substantiating the involvement of Sanjit Madhu, HC/733. The Superintendent of Police, South
4 0.A. 351/00806/2021 Andaman District issued the memorandum dated 19/10/2015 proposing to hold a regular departmental enquiry against the applicant.
The applicant had submitted his reply dated 28/10/2015 denying the Charges levelled against him. A regular departmental proceedings -was initiated against the applicant by appointing Enquiry Officer and the Presenting Officer on 18/11/2015. The Enquiry Officer submitted his :
findings on 07/11/2016 substantiating involvement of the applicant along with accused Sanjoy Chakravorthy in connection with case Crime No. 582/15 dated 29.08.2015 U/s 32 of the A& N Islands Regulation --lll of 1876 | registered at Police Station Aberdeen. The findings submitted by Enquiry Officer was supplied to the applicant with the direction.to the applicant to submit his reply within 10 days from the date of. receipt of the memorandum.
The applicant had submitted his reply dated 21/11/2016 with a request to exonerate him from the charges. The Disciplinary Authority/Superintendent of Police, South Andaman District imposed the penalty of withholding of his two future increments with cumulative effect vide Order book No. 04 dated 02/01/2017.
Agerieved the applicant preferred an appeal to .the Appellate Authority, the Director General of Police on 12/09/2017 after lapse of prescribed time of 03 months in terms of Rule 9.18 of A& N Police Manual, 1963.
The Appellate Authority rejected the appeal. The applicant challenged 'the orders passed by the Disciplinary Authority and the Appellate Authority before this Tribunal by filing an Original Application being O.A. No. 351/01491/2019 with M.A. No. 351/872/2019-(Shri Sanjit . Madhu-vs.-The Union of india & Others).
This Tribunal disposed of the 'said Original Application vide order dated 22/12/2020 by condoning the delay of appeal filed by the applicant _and further directed the Appellate Authority to consider the appeal afrsh on merit and to pass a reasoned and speaking order.
During the pendency of hearing of the O.A. No. 1491/2019, the applicant vide his application dated 30/09/2020 once again requested to consider the penalty order passed by the Disciplinary Authority and to set
5 ; O.A. 351/00806/2021 " aside 'the same by giving him an opportunity of hearing. In response to the representation, the Appellate Authority/Director' General of Police, A & N | islands afforded an opportunity to the applicant on 05/10/2020 at 1200 hrs 'to explain his case and after hearing him in person, rejected the appeal as "not maintainable vide memo dated 24/10/2020, The applicant once again submitted his application dated 05/11/2020 to the Appellate Authority. The ° competent Authority, after hearing the applicant in person, once again . rejected the appeal on 05/12/2020.
In pursuance of order dated 22/12/2020 passed by this Tribunal, the. Appellate Authority/Director General of Police, A & N Islands once again examined the entire records pertaining to departmental proceeding held "against the applicant and found sufficient evidence against the applicant for his involvement in case Crime No. 582/15 dated 29.08.2015 U/s 32 of the A
-& N Islands Regulation-Ill of 1876 registered at Police Station Aberdeen. ' During further course of examination of relevant records, the Appellate Authority found that though there had been prima facie involvement of the applicant in the above criminal case, the Investigating Officer of the Crime No. 582/15, dated 29.08.2015 did not include the name of the applicant and 'the criminal case which.was supposed to'be completed within a very short | time, had taken more than 04 years to submit Charge Sheet and that too without mentioning about the applicant. A supplementary Charge Sheet was filed vide. Supplementary Charge Sheet No. 4132/2021 dated 14/07/2021 by the Station House Officer, Policé Station Aberdeen against the applicant and 3 others and the case is pending adjudication.
The Appellate Authority/Director General of Police, A & N Islands was of the view that the punishment imposed by the disciplinary authority against the applicant is not in consonance with the grave misconduct committed by him and proposed to enhance the penalty. A Show Cause 'Notice dated 10. 04. 2021 calling him upon for an explanation from the
- applicant was issued. In response to the Show Cause Notice, the applicant ' submitted his reply on 17.04.2021. After perusal of the reply and after hearing him in person, the Appellate Authority/Director General of Police, A
-& N Islands vide Order Book No. 1579 dated 29.04.2021, felt that being one --
of the member of disciplined police force who is supposed to be employed 6 ". Q.a, 351/00806/2021 in police service to curb down such menace, the applicant was involved in 'the crime of. arranging such huge amount of liquor bottles, imposed the penaity of reversion from the rank of Head Constable to Police Constable . (Executive) for a period of 05 years and postponed his future increment of pay during the penalty period.
4. The respondents w would allude that :
(i) During the cross examination of PW-5 made it: clear that he interrogated the accused of the criminal case and during the interrogation the accuse4d Sanjay Chakraborthy disclosed. the name of the applicant that he had helped the accused for the election campaign and arranged IMFL from one 'Bar in the name of Hotel Raj Prakash located at Lambaline.
_(ii) That PW-6 HC/264 Sanjay Kujur has further stated that during the couse of investigation of accused Sanjay Chakraborthy, Sayed Mortaza @ Munna had disclosed that HC/733 Sanjit Madhu, "had felicitated the accused for purchase of 115 Nos. of IMFL bottle through Shiva, owner of Hotel Raj Prakash who was in mainland and on the direction of owner Sayed Mortaza Ali @ Munna had handed over the haul to the accused. In doing so he directed: Sheikh Fazal Rehman (waiter) to chdnge the direction of CCTV camera."
| (iii) "That Sheikh Fazal. Rehman (waiter), Hote! Raj Prakash was examined as PW-7 and stated that on 28.08.2015 after closing the Bar at 2300 hrs. he ' was going to sleep when Manager Sayed Mortaza Ali @ Munna directed:
him to change the direction.of CCTV camera. He changed the direction of camera and went to sleep. Next day he came to know that some liquors 'were taken from the Hotel Raj Prakash has been captured by the police."
(iv) "That during the cross examination of PW-5 against the question no. 1 by the defence assistant of the applicant, the PW-5 had categorically given the answer to the question by stating that | did not interrogate the accused Sanjay Chakraborthy about the source of IMFL on the spot but on the direction of SHO Aberdeen the accused was interrogated at PS Aberdeen
- were the accused disclosed the name of HC/ 733 Sanjit Madhu (the applicant °.
-herein)."
7 ; O.A. 351/00806/2021
(v) "That during the cross éxamination of PW-5 by the defence assistant at question no. 10, the PW-5 had stated that the accused person namely. Sanjay Chakraborthy disclosed the name of HC/733 Sanjit Madhu during the | interrogation." . -
(vi) "That during the cross-examination of PW-6 Sanjay Kujur at question no. 6 the PW-6 has categorically stated that on 28.08.2015 Sanjit Madhu -- called Sayed Mortaza Ali twice, first around 1251 hrs. and second 1022 PM and 29.08.2015 he called Sayed Mortaza Ali at 0415 hrs." and therefore "the appellate authority has rightly passed the order or punishment and as such the original application filed by the applicant is liable to be dismissed."
5. The applicant on the other hand has repelled the arguments stating as under :-
That, in the evening of 28" August 2015, the applicant received call from one of Co-Villager Sanjoy Chakraborty wherein he informed the -- applicant: that he came to Port Blair for some urgent work and due to unavoidable circumstances he was compelled to stay back at Port Blair and therefore requested the applicant to arrange his boarding in any of the 'Hotel at Port Blair. On such request, the applicant made necessary arrangement for his boarding in one of the Hotel "Raj Prakash", Port Blair and also forwarded the mobile number of the person to be contacted but the applicant had no idea for what purpose he stayed back at Port' Blair. | _ That, on 29.08.2015 at about 4:30 AM the applicant received a call from Sanjoy Chakraborty wherein he informed' that he was arrested from Minnie Bay by Police personnel of Police Station Aberdeen for carrying illicit liquor, on the same day the applicant was called at Police Station Aberdeen by the Duty Officer, SI S. Viswanand. At about 8:30 AM, the applicant visited the Police Station, Aberdeen wherein his statement was recorded by the Duty Officer. FIR No. 582/2015 dated 29.08.2015 u/s 32 of 1876 _ Regulation was initiated 'against Sanjay. Chakraborty, at Police Station Aberdeen. On the basis of such FIR against Sanjoy Chakraborty, a preliminary inquiry was conducted by one V.P. Mishra, SI under the respondent no. 3 wherein Sub-Inspector S. Viswanand and' HC/264 Sanjay
- Kujur in their statement stated that Sanjoy Cha kraborty informed them that ee ee ay rep aan 8 . 0.A. 351/00806/2021 the applicant helped him in getting huge quantity of IMFL bottles from -
Hotel "Ral Prakash", Lambaline, Port Blair for the purpose of canvassing -
during the time of Panchayat/Municipal election. On the basis of the preliminary inquiry, on 31° August 2015, the applicant was suspended on » the premises that the applicant facilitated the said Sanjoy Chakraborty in the aforesaid crime by arranging large quantity of liquor bottle. 'That, in the disciplinary proceeding all together eight witnesses were cited by the prosecution, PW-1 SI V. P. Mishra who conducted the | preliminary investigation: PW-2 ASI Ashok Kumar Bhagel, PW-3 PG-2871 Vishal Kumar and PW-4 PC-2893 M.K. Akbar Ali who conducted the raid at Minnie: Bay, Port Blair, PW-5, SI S. Viswanand the Duty Officer, PW-6 HC/264 Sanjay Kujur Investigation Officer in the criminal case initiated against Sa njoy Chakraborty, PW-7 Sheikh Fazal Rehman, waiter of the hotel "and PW-8 Sayed Mortaza Ali, Manager of the said hotel while the applicant . adduced one Sanjoy Chakraborty and Vijay Kumar Khiro as defense witnesses. That admittedly the deposition of PW-2, PW-3 and PW-4 was' confined to the raid, PW-7 was not examined, PW-8 did: not support the case of the prosecution. SIS. Viswanand, PW-5 in his cross examination stated that, "I did not interrogate the accused Sanjoy Chakraborty about the source of IMFL on the spot but on direction of SHO Aberdeen the accused was interrogated at PS 'Aberdeen where the accused disclosed the name of HC/733 Sanjit Madhu". | . That, Sanjoy Chakraborty was examined as DW-1 in the disciplinary proceeding when he stated that "--/ requested him to arrange a room in "the Hotel or Lodge----HC/Sanjit Madhu told me that | may contact one person namely Mr. Munna, Assistant Manager he will provide you a room in _ the Raj Prakash Hotel---I contacted Mr. Munna of Hotel Raj Prakash and requested him to provide a room with reference to HC/Sanjit Madhu. He provided me one room----so finally, | disclosed the name of HC/Sanjit Madhu stating that | requested -him for my night stay, so he arranged a room:in the Hotel Raj Prakash for me. However, he has not helped me in any form in the purchase of IMFL bottles but the police particularly StI S. Viswanand and a Constable were asking me again and-again that HC/Sanjit Madhu might have helped you. | said he has only arranged a room for me---
9 _ O.A. 351/00806/2021 wnnnnn-=- " That even the SHO was not examined in the: said disciplinary nroceeding. That HC/264 Sanjay Kujur was examined as PW-6 and in his' cross-examination he denied the involvement of the applicant in respect of --
| purchase of IMFL bottles by Sa njoy Chakraborty.
That the Inquiry Officer having relied upon the deposition of PW-5, SI S. Viswanand and HC/264 Sanjay Kujur,. held that from their deposition it e "was crystal cler that Sanjoy Chakraborty had disclosed before SI S. Viswanand, the name of the applicant who helped in getting huge quantity of IMFL bottles, from Hotel "Raj Prakash", Lambaline, Port Blair for the purpose of canvassing during the time of Panchayat/ Municipal 'election. | That the Inquiry Officer in the inquiry report also stated that Sanjoy Chakraborty had deposed that during the course of the investigation Sanjoy "Chakraborty disclosed that the applicant, whereas in the deposition of .
Sanjoy Chakraborty the same is missing. That HC/264 Sanjay Kujur was examined as DW- 1 in the disciplinary proceeding and stated that "------------ | . requested him to arrange a room in the Hotel or Lodge----HC/Sanjit Madhu told me that | may contact one person namely Mr. Munna, Assistant ~ Manager he will provide you a room in the Raj Prakash Hotel-----] contacted
- Mr. Munna of Hotel Raj Prakash and requested him to provide a room with reference to HC/Sanjit Madhu. He provided me one room----- -50 finally, | disclosed. the name of HC/Sanjit Madhu stating that | requested him for my night stay, so he arranged aroomin the Hotel Raj Prakash for me. However, he has not-helped me in.any form in the purchase of IMFL bottles but the police particularly SiS. Viswanand and a Constable were asking me again and again that HC/Sanjit Madhu might have helped you. | said he has only | arranged a room for me----", That even the SHO was not examined in the said disciplinary proceeding.
Therefore, |
(i) Without any evidence the Inquiry Officer held that before the PW-5, SIS. Viswanand and PW-6, HC/264 Sanjay Kujur, Sanjoy chakraborty and Seyed Mortaza Ali disclosed that. the applicant facilitated Sanjoy Chakraborty in:
- getting huge quantity of IMFL bottles from Hotel "Raj Prakash", Lambaline, Port Blair for the purpose of canvassing during the time of Panchayat/Municipal election.
. 10 ) QA, 351/00806/2021 "(ii on the basis of the same, the disciplinary authority imposed the punishment of withholding of the applicant's further increments for a period of two years with cumulative effect and that the suspension period : of the applicant shall be treated as not spent on duty for all intents and purpose, (iif) That the respondent no.3, instead of considering the reply submitted by | the applicant, vide Order Book No. 1579 dated 29.04.2021 imposed penalty of reversion of the applicant to the substantive rank of police constable for a period of 5 years and postponement of future increment of pay of the 'applicant during the penalty period until the same is restored to the rank of Head -Constable and thereby modified the Order Book No. 4 dated 02.01.2017 passed by the respondent no. 4. Further that , thereafter, he was arrested. on 30.03.2021 and a supplementary charge sheet no.
132/2021 dated 14" July,2021.. |
-_(iv) That the respondent authorities, only on the basis of the deposition of SIS. Viswanand and HC/264 Sanjay Kujur intended to prove the charge against the applicant on the premise that the aforesaid two witnesses stated that Sanjoy Chakraborty, the accused, in his statement before them narrated that the applicant facilitated Sanjoy chakraborty in the alleged . crime, whereas Sanjoy Chakraborty when examined in the Disciplinary
-Proceeding categorically stated that at no point of time the applicant helped him in any form in the purchased of IMFL bottles, he only helped | him getting room at Hotel "Raj Prakash", Lambaline, Port Blair but not the IMEL bottles. | |
(v) That despite of such categorical statement of Sanjoy Chakraborty, the Inquiry Officer held the charge proved against the applicant, the Disciplinary Authority without application of mind-affirmed it followed by
- the Order of the Appellant Authority which went one step ahead and enhanced the punishment without. any evidence and thereby imposed 'reversion.of the applicant to the substantive rank of Police Constable for a period of 5 years.
(vi) That it is a case of no evidence and on the basis of surmises and conjectures a disciplinary proceeding was initiated against the applicant . followed by punishment imposed by the respondent no. 3 and 4..
my Bee 11 ; 0.A. 351/00806/2021
(vii) That the punishment imposed upon the applicant is disproportionate _to the charge. | |
6. The applicant would rely upon the following legal propositions to support his contention - .
1. Hon' ble Apex Court, in the case of Director General R.P.F. and others vs. Ch Sai Babu, reported in (2003) 4 SCC 313, held "Normally, the punishment:
imposed by disciplinary authority should not be disturbed by High Court or Tribunal except in appropriate cases that too only after reaching a conclusion that the punishment | imposed is grossly or. shockingly disproportionate, after examining all the relevant factors including nature of charges proved against, the past conduct, penalty imposed earlier, the ; nature of duties assigned. having due regard to their sensitiveness, exactness expected of and discipline required to be maintained, and the.
department/establishment in' which the concerned delinquent person works, In the present case we do not find that there 'has been a consideration of all the relevant facts and the Learned Single Judge has not . > recorded reasons in order to modify the punishment imposed. The Division | . Bench of the High Court also did not examine the matter in proper . . : perspective but simply concurred with the order passed by the Learned Single . Judge. Normally in cases where it is found: that the punishment
1. 7 imposed is shockingly disproportionate, high Courts or tribunals may remit.
the cases to the disciplinary authority for reconsideration on the quantum of punishment." _ | 2, .Hon'ble Apex Court, in Chairman and Managing Director, United Commercial Bank and Others vs. P. C. Kakkar [(2003) 2 SCC 93] held that, , ee _ "The 'scope of judicial review is limited to the deficiency in decision-making process 'and not the decision. To put difference unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further to certain litigations it may, in exceptional and rare cases, impose 7 appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate it ek ee ee would be appropriate to direct the disciplinary authority or the Appellate a Authority to reconsider the penalty imposed."
2 | 0.A, 351/00806/2021 7, Considered the rival contentions, perused the materials on record, in Chairman & Managing Director Vs. P.C. Kakkar (supra), the Hon'ble Court observed as under :- (emphasis added) .
"7 Lord Greene said in'1948 in the famous Wednesbury Case (1948(1) KB 223) that when a statute gave discretion to an'administrator to take a decision, the scope of judicial review
-would remain.limited. He said that interference was not permissible unless one or the other of the following conditions was satisfied, namely the order was contrary to law, or relevant factors were not considered, or irrelevant factors were considered; or the decision was one . . 7 7 _ ° which no reasonable person could have taken. These principles were consistently followed in . the UK.and in India to judge the validity of administration action. It is equally well known _that in 1983, Lord Diplock in Council for Civil Services Union v. Minister of Civil Service [{1983) IAC 768] (called the CCSU case} summarized the principles of judicial review of '* administrative action as based upon one or other of the following viz., illegality, procedural irregularity and irrationality. He, however, opined that, "proportionality" was a "future possibility".
8. In Om Kumar and Ors. V. Union of india (2001 (2) SCC 386), this Court observed, inter r ali, as follows : .
"The principle originated in Prussia in the nineteenth century and has since been adopted in Germany, France and other European countries, The European Court of Justice at Luxembourg and the- European Court of Human Rights at Strasbourg have applied the principle while judging the validity of administration action. But even long before that, the "Indian Supreme Court has applied the principle of "proportionality" to legislative action since 1950, as stated in detail below.
By "proportionality", , we mean the question whether, while regulating exercise of fundamental rights, the appropriate or least-restrictive choice of measures has been made by the legislature or the administrator so as to achieve the object of the legislation or the | OS purpose of the administrative order, as the case may be. Under the principle, the Court will | ; see that the legislature and the administrative authority "maintain _a_proper balance : between the adverse effects which the legislation or 'the administrative order may have on the rights, liberties or interests of persons keeping in mind the purpose which they were _ intended to serve." The legislature and the administrative authority are, however, given an . area of discretion or a range of choices but as to whether the choice made infringes the rights excessively or not is for the court. That is what is meant by proportionality.
In the famous passage, the seeds of the principle of primary and secondary review by courts were planted in the administrative law by Lord Bridge in the Brind Case (1991) 1 AC
696. Where Convention rights 'were in question the courts could exercise a right of primary review, However, the Courts would exercise a right of secondary review based only on Wednesbury principles in cases not affecting the rights under the Convention. Adverting to cases where. fundamental freedoms were not invoked and where administrative action was questioned, it was said that the Courts were then confined only to a secondary review while ' the primary decision would be with the administrator. Lord Bridge explained the primary and secondary review as follows : .
"The primary judgment as to whether the particular competing public interest justifying 'the particular restriction imposed falls to be made by the Secretary of State to whom Parliament has entrusted the discretion. But, we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, 'could reasonably make the. primary judament." -
But where an administrative action is challenged as "arbitrary" under Article 14 on the basis of Royappa (1974) 4 SCC 3 (as in cases where punishments in disciplinary casesare | 13° , O.A. 351/00806/2021 challenged), the questign- will be whether the. administrative order_is "rational" or "reasonable" and the test then is the Wednesbury test, The Courts: would then by confined only toa secondary role and will only have to see whether the administrator has done well in his_primary_role, whether he has acted iNegaily -or_ has omitted rélevant factors from consideration or has taken irrelevant -factors into consideration or whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary. In G. B. Mahajan v. Jalgaon Municipal Council (1991) 3 SCC 91 at p, 111 Venkatachaliah, J. fas he then was) pointed out that "reasonableness" of the administrator under Article 14 in the context of administrative law has to be judged from the stand point of Wednesbury rules. In Tata Cellular vs. Union of india (1994) 6 SCC 651 at pp. (679-80), indian Express Newspaper Bombay (P) Ltd. V. Union of India (1985) 1 SCC 641 at p.
691), Supreme Court Employees Welfare Assn. V. Union of india (1989) 4 SCC 187 at p. 241) 'and U.P. Financial Corpn. V. Gem Cap (india) (P) Ltd. (1993) 2 SCC 299 at p.307) while judging whether the administrative action is "arbitrary" under Article 14 (i.e. otherwise then _ being discriminatory), this Court has confined itself to a Wednesbury review always.
The principles explained in the last preceding paragraph in respect of Article 14 are now - to be applied here where the question of "arbitrariness" of the order of puriishment is questioned under Article 14.
Thus, from the above principles and decided cases, it must be held that where an administrative decision relating to punishment in disciplinary cases is questioned _as "arbitrary" under-Article 14, the court is confined to Wednesbury principles as a secondary reviewing authority. The Court will not apply proportionality as_a primary reviewing court because no issue of fundamental freedoms nor or discrimination under Article 14 applies in sucha context. The court while reviewing punishment and if it is satisfied that Wednesbury principles are violated, it has normally to remit the matter to the administrator for a fresh decision as to the quantum of punishment. Only in rare cases where there has been long delay in the time taken by the disciplinary proceedings and in the time take in the courts, and such extreme or rare cases can the court substitute its own view as to the quantum of punishment."
9. In B. C. Chaturvedi vs. Union of India and Ors. (1995[6] SCC 749) it was observed :
"A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have. exclusive power to consider the: evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. if
- the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to- shorten. the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof."
10. In Union of India and Anr. Vs. G. Ganayutham (1997[7] SCC 463), this Court summed up the position relating to proportionality in paragraphs 31 and 32, which reads as follows :
"The current position of proportionality in administrative law in England and india can be summarized as follows : :
(1) To judge the validity of any administrative order or statutory discretion, normally the Wednesbury test is to be applied to. find out if the decision was illegal or suffered from ' procedural improprieties or was one which no sensible decision-maker could, on the material before him and within the framework of the law, have arrived at. The Court would consider whether relevant matters had not been taken into account or whether.irrelevant matters had been taken into account or whether the action was not bona fide. The court would aiso 14 | . ee 0.A. 351/00806/2021 consider whether the decision was absurd or perverse. The court would not however go into the correctness of the choice made by the administrator amongst the various alternatives open to him. Nor 'could the court substitute its decision to that of the administrator. This is . the Wednesbury (1948. 1 KB 223) test.
(2) The court would not interfere with the administrator's decision unless it was illegal or suffered from procedural impropriety or was irrational-in the sense that it was in outrageous defiance of logic or moral standards. The possibility of other tests, including proportionality being brought into English administrative law in future is not ruled out. These are the CCSU .(1985 AC 374) principles." --
In the aforesaid backdrop, we discerned as under :.
(i) Sanjay Chakraborty, the accused and DW-1, in his deposition before the enquiry officer, clearly deposed that "! disclosed the name of HC/Sanjit Madhu stating that | requested him for my night stay, so he arranged a room in the Hotel Raj Prakash for me. However, he has not helped me in any form in the purchase of IMFL bottles but the police particularly St Viswanand and a Constable were asking me again and again that HC/Sanjit Madhu might have | _ helped you, | said he has only arranged a room for me, At Police Station Aberdeen a case was registered against me, | was arrested and released on bail in the evening. | did not say anything against HC/Sanjit Madhu for helping me in getting the IMFL bottles." | The enquiry officer has clearly noted that, "during cross-examination by the. 'Presenting Officer DW-1 stated that C.O. had only helped him getting room at Hotel Raj Prakash but not the IMFL bottles which he alleged to be ourchased
- through brokers, But he did not remember name of any of the brokers. Since "he is the prime accused in the instant case as such he appears to be tutored." ' 'After verifying the submission of both sides (i.e. Defense 'as well as the . Prosecution), it is found that HC/733 Sanjit Madhu (C.O.) had only helped Sanjoy Chakraborty in getting room at Hotel Raj Prakash but not the IMEL.
"bottles which he admitted 'to be purchased through brokers. Yet he felt that 15 - Q.A. 351/00806/2021 DW-1 has. been tutored, only because during exatnination-in-chief Syed Mortaza Ali @ Munna stated that t Sanjoy Chakraborty has given. him Rs. 400/- (Four hundred only) as room rent whereas . as per the version of Sanjoy Chakraborty he has given Sayed. Mortaza @ Munna Rs. 5. 500/- and this kind of statement leaves a doubt in the mind that DW-1 has been tutored.
In absence of any statement from the accused Sanjoy Chakraborty himself that the applicant facilitated purchase of IMFL bottles, the enquiry officer could not have held the applicant guilty of the charge. | | In absence of complete absence of any direct evidence or to say at least even of 'preponderance and probability" which would have made him conclude . against the applicant, we would infer that the 10's conclusion was neither "rational" nor "reasonable". It was based on his own whims and fancies.
(ii), Further, we would note the recording of the following statements in the 10's report after scanning of the depositions of the following witnesses :
(i) SIV. P. Mishra, SHO PS Diglipur (PW-1) "During cross- examination, PW-1 had made it clear that the C.O. was examined but statement was not recorded, Further Si S. Vishwanand on examination revecled that during interrogation Sanjoy Chakraborty admitted that _HC/733 Sanjit Madhu had helped. the accused in getting 115 nos. 750 ml of {MEL bottles.
On the question of when Sanjay" 'Chakraborty, Sheikh Fazal Rehman themselves .
did not disclose the name of C.O. then how _come pw-1 substantiate _the aliegations, PW-1 has made it clear that his findings are based on the statement --
of HC/264 Sanjay Kujur, |.O. of the case and statement of the accused Sanjay Chakraborty and CDR of C.0."
16 . ' 0,A, 351/00806/2021
(ii) PS! Ashok Kumar Bhaagel, PS Aberdeen. (PW-2) "Submissions from both the side {i.e. Prosecution as well ds the Defense) have been verified and found that PW-2 has only apprehended the accused alongwith the haul of IMFL bottles but accused did not disclose the name of. HC/733 eet Madhu (C. O.) before PW-2."
1(iii), PC/2871 Vishal Kumar; PS Aberdeen (PW-3} "During. cross-examination, he. made it clear the he alongwith team deployed in | : Minnie Bay picket had intercepted the accused Sanjay Chakraborty in a Maruti a Zén Estello car AN 01 F 1747 carrying 115 bottles of IMFL. in-charge of the team had interrogated the accused 'on the spot but accused did not give proper reply.
for source and did not tell the name of C.O. .
Submissions from both the side (i.e. Prosecution as well as Defense) have _ been verified and found that PW-3 was part.of the police picketing team at the time of apprehension of accused person namely Sanjoy Chakroborty alongwith a _ the haul of IMFL bottles but accused did not disclose the name of HC/733 Sanjit Madhu (CO) before PW-3."
(iv) PC/2893 MLK, Akbar Ali, PS Aberdeen (PW-4) "At the time of apprehension of accused person namely Sanjoy Chakraborty alongwith the haul of IMFL bottles but accused did not disclose the name of HC/733.Sanjit Madhu (CO) before PW-4."
(v) SLS. Viswanand, PS Aberdeen (PW-5)
- "During cross examination he made it clear that he interrogated the accused at PS Aberdeen on the direction of SHO PS Aberdeen but not at the spot. Further he had informed the facts of involvement of C.0. ta SHO .PS Aberdeen but did not' mention in 'any records. Further he interrogated the accused about the source of eo IMFL but not about the money paid by accused. Further during crass-examination PW-5 stated that during interrogation accused Sanjay Chakraborty disclosed the . name of CO that cO helped him for the election campaign' and arranged the IMEL Oe from one bari in the name and style Hotel Raj Prakash located at Lamba Line."
17 '0.4. 351/00806/2021 It is evident that although none of the witnesses, deposed directly against | the CO (applicant), the IO on the basis of the sole statement of PW-5, that during interrogation by Police the accused disclosed the name of the co, | concluded that, "It is clearly established that .the accused person _hamely 'Sanjoy : yo Chokrdiborty disclosed before PW-5 that HC/733 Sanjit Madhu ( co) helped him in getting huge quantity of IMFL bottles from Hotel Raj Prakash, Lamba Line for the' purpose of canvassing during the time of Panchayat/Municipal Election."
Such a conclusion is neither rational, nor reasonable or supported by -
evidence, it is based on the mere ipse dixit of the IO.
(vi) HC/264 Sanjay Kujur, PS Aberdeen (PW-6) The lO recorded that, "During cross examination, he stated that he interrogated the accused with regard to. payment and come to know that the payment were to be paid later to the owner of the Hotel Raj Prakash. He examined Shiva, the owner of the Hotel but he didnot disclose anything about CO. Apart from that he could not figure out the exact topic over which the calls were made between CO, accused ; and owner of the Bar."
Although there was no incriminating statements against the CO (applicant), yet the lO somehow concluded that, ne is revealed that PW-6 was the IO of the case - registered against the accused person Sanjoy' Chakraborty and_ during iriterrogation the accused disclosed the name of HC/733 Sanjit Madhu (CO) that he is the person who helped him in getting huge quantity of IMFL from Hotel Raj Prakash for the purpose of canvassing in the Panchayat/Municipal election and -held the ae) (applicant) guilty."
a) Such a conclusion on, the basis of a hearsay evidence of PW-6 against the 'applicant was not free from bias.
"18 | _, 0A. 351/00806/2021
(vii) Syed Mortaza Ali @ Munna S/o Shri Syed Mizanur (26) years, Manager Bar Hotel Raj Prakash, Lamba Line (PW-8) _ _ "During cross-examination he denied disclosing the C.O. name to 1.0. of the case."
Yet the !0 concluded, _ "Since he is also cited as an accused in the case, his version is tutored. His i . involvement in providing the haul to_ accused on the request of ¢. 0. is being proved by the fact that Sheik Fazal Rehman was directed by him to change the direction of camera of Hotel to facilitate the crime."
On one hand the IO records, "It is revealed that HC/733 Sanjit Madhu (CO) requested him to provide a room to stay a night for accused Sanjoy Chakraborty but dénied that HC/733 Sanjit Madhu had helped Sanjoy Chakraborty in.getting huge quantity of IMFL from Hotel Raj Prakash;"
The enquiry officer concludes "PW-5 SIS. Viswanand, seizing officer of IMFL bottles & PW-6 HC/264 Sanjay Kujur, 10 of the case are the witnesses before
- , whom both. the accused Sanjoy Chakraborty and: Syed Mortaza Ali @ Munna disclosed that HC/733 Sanjit Madhu felicitated accused Sanjoy Chakraborty in getting huge quantity of IMFL from Hotel Raj Prakash. | Hence, felicitating the accused person in getting huge. quantity of IMFL bottles by the charge officer HC/733 Sanjit Madhu is PROVED."
Evidently, the enquiry. officer to hold the CO (applicant) guilty has discarded the statements-made by the PW-1, PW-2, PW-3, PW-4 and the DW-1 which. were in favour of the co (applicant) and solely banked upon the deposition of PW-5 , PW-6, that 'the DW-1 (accused) during investigation of the criminal case had bo | -disclosed the name of the CO (applicant) which statement made before a police 19 . 0.A. 351/00806/2021 personnel during investigation could not be used as an evidence in terms of settled law.
7. The Ld. Counsel for the applicant at hearing would heavily rely upon the following:
(i) Anil Kumar vs Presiding officer {(1985) 3 5CC 378] to contend that, "q disciplinary enquiry has to be a quasi judicial enquiry held according to the principles of natural justice and the enquiry officer has a duty to act judicially. Where: a disciplinary enquiry . _ affects the livelihood and is likely to cast a stigma and it has to be held in accordance with the.
fo . __ principles of natural justice, the minimum expectation is that the report must be a reasoned one, "- It cannot be an ipse dixit of the enquiry officer. The Court then may not enter into the adequacy or sufficiency of evidence, But where the evidence is annexed to an order sheet and no corrélation is established between the two showing application of mind, it is. not an enquiry report at ail " .
(i) UO! & Ors ys. Gyan Chand Chattar [(2009) 12 Supreme Court Cases 78 to contend that, "An enquiry is to be conducted against any person giving strict adherence to the statutory provisions and principles of natural justice. The charges should be specific, definite and giving . details of the incident which formed the basis of chdrges. No enquiry can be sustained on vague oO ; _charges. Enquiry has to be conducted fairly, objectively and not subjectively. Finding should not _be perverse or unreasonable, nor the same should be based on conjectures and surmises. There _ isa distinction in proof and suspicion. Every act or omission on the part of the delinquent cannot be a misconduct. The authority must record reasons for arriving at the finding of fact in the context of the statute defining the misconduct."
"Evidence adduced should not be perfunctory even if the delinquent does not take the defence or make a protest against that the charges are vague, that does not. save the enquiry from being vitiated for the reason "that there must be fair play in action, particularly, in respect of an order involving' adverse or penal consequences."
"a serious charge of corruption requires to be-proved to the hilt as, it brings civil and criminal consequences upon the employee concerned." , ' (ili) MLV. Bijlani vs-Union of india & Ors [(2006} 5 SCC 88, to contend that, "Enquiry: Officer performs _a_ quasi-judicial function - He upon analysing the documents must "arrive at conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record - While doing so, he cannot take into consideration any irrelevant fact or refuse to consider the relevant facts - He cannot shift the burden of proof or _ reject the relevant testimony of the witnesses only on the basis of surmises and conjectures - He cannot enquire into the allegations with which the delinquent officer had not been charged with"
iv) Moni Shankar vs Union of India [(2008).3 SCC 484, to contend that "The departmental proceeding is a quasi-judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The courts exercising power of judicial review are entitled to consider whether relevant piece of evidence has been taken into consideration and irrelevant facts excluded therefrom, while'proving misconduct against an employee, Inference on facts must be based on
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20 =; 'O.A. 351/00806/2021 .
evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that 'the evidence adduced by the Department, even if it is taken on its face value to-be correct in its entirety, meet the requirements of burden of
- proof, namely, preponderance of probability. If on such 'evidence, the test of doctrine of proportionality has not been satisfied, the Tribunal was within.its domain to interfere. Doctrine of-unreasonableness is giving way to the doctrine of proportionality. On £ertain aspects, even judicial review of facts is also permissible."
"The Tribunal was entitled to consider the question as to whether the. evidence led by the Department was sufficient to arrive at a conclusion of quilt or otherwise of the delinquent officer. While reappreciation of evidence is not within the domain of the Tribunal, an absurd situation emanating from the statement of a witness can certainly be taken note of."
v) Roop Singh Negi vs Punjab National Bank & Ors {(2009) 2 SCC 570, to contend that, "A departmental proceeding is a quasi-judicial proceeding. The enquiry officer performs a quasi- judicial function. The charges levelled 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 investiqating officer aqainst 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." .
- When, "There was no direct evidence. Even there was no indirect evidence."
-The Hon'ble Court held, "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."
Due to the revelation and enumeration as above, we would hold that the conclusion of the IO that the applicant had facilitated purchase of IMFL bottles, -
'was neither based on direct evidence nor on indirect evidence or even on the basis of "preponderance and probability". It is based on statements. made during investigation which is inadmissible in evidence. It is trite and axiomatic that what "is inconsistent and contrary to reason is not permitted in law. The conclusion as .
in the present case is not an analysis of evidence but analysis of belief. When a conclusion .is arrived at without support of reasons it is bound 'to be arbitrary, whimsical, capricious and it is neither rational nor reasonable , it is bound to be discarded..
The Disciplinary Authority and the Appellate Authority ought to have weighed the correctness and: propriety of such conclusion, which is not done.
24 oe "* Q,A. 351/00806/2021 -
"In view of the discussion supra, we would not hesitate toquash the penalty "order and the 'consequent appellate order and remand the matter back to.the disciptinary authority to apply his mind cérrectly on the evidence, the defence, the conclusion' and the correctness of the conclusion and ass an appropriate
-- -- order.within 2 months'from the date of receipt ofa copy of this order.
O.A. accordingly stands disposed of. | No costs. ;
poo _ (Dr. Nandita Chatterjee) a . ce 7 (Bidisha Banerjee) _ ... ' Administrative Member. Oo . °.. Judicial Member