Calcutta High Court (Appellete Side)
Nani Gopal Majumder vs State Of West Bengal & Ors on 23 September, 2011
Author: Girish Chandra Gupta
Bench: Ashim Kumar Banerjee, Girish Chandra Gupta
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Form No. J(1)
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Present :
THE HON'BLE MR. JUSTICE ASHIM KUMAR BANERJEE
And
THE HON'BLE MR. JUSTICE RAGHUNATH RAY
WPST NO. 630 of 2009
Nani Gopal Majumder ... Petitioner
Vs
State of West Bengal & Ors. ... Respondents
For the Petitioner : Mr. D. N. Roy
Mr. Moloy Saha
For the Respondent : Mr. Ashok Banerjee, learned G.P.
Mr. Subrata Talukdar
Mr. Shyamal Sanyal
Heard on : 12.9.11 and 13.9.11.
Judgment on : 23.9.2011
RAGHUNATH RAY, J. :
The petitioner at all material point of time was working in the Police service of Calcutta Police Force in the substantive post as SYCE No. 158/05 in Calcutta Mounted Police of Calcutta Police.
2. On 3.2.99 at about 9.00 A.M., an FIR was lodged in Taltala Police Station alleging inter alia that while one Miss Ekta Tewari, a young college =2= student aged 24 years was entering in the subway of Metro Railways at J. N. Road near the crossing of S. N. Banerjee road, Sri Mazumdar, the Constable outraged her modesty by hugging her from behind. In response to her hue and cry, some passers-by chased him and overpowered him finally. He was handed over to the Police posted in front of the Peerless Inn and was taken to Taltala Police Station.
3. On the basis of her written complaint, Taltala P.S. Case No. 59 dated 3.2.99 under Section 354 IPC was started against the petitioner. He was produced before the learned Metropolitan Magistrate, 7th Court, Calcutta and was subsequently released on bail. On completion of investigation, the charge-sheet under Section 354 IPC was submitted against him.
4. During the pendency of the aforementioned criminal case, a departmental enquiry being Proceeding No. 111 dated 03.02.1999 was initiated by the respondent Police Authority against the petitioner and the Assistant Commissioner of Police was appointed as the Enquiry Officer to conduct the enquiry in respect of the charge framed against him. He was, subsequently charge-sheeted as under:
"You, SYCE No. 158/65 Nani Gopal Mazumdar of C.M.P., H.Q.F. is charged with gross misconduct of unbecoming of a Government servant in that:
On 3.2.99 at about 9.05 hrs you hugged one Miss Ekta Tewari aged about 24 years D/O Sri Sewsankar Tewari of 6, Matt Lane, Calcutta-13 from behind with a bad intention, while she was entering =3= the subway (Metro Rail) on J.L.Nehru Road near the X-ing of S.N.Banerjee Road and thereby you had outraged her modesty.
You are, therefore, directed to state in writing as to whether you plead guilty to the charge or prefer an open enquiry.
Your reply should reach Shri S.M.Ghosh, A.C. Pass Hqrs. Within 7 (seven) days from the date of receipt of this chargesheet."
5. Basing upon the aforementioned chargesheet, the Enquiry officer conducted enquiry. The petitioner, however, refuted the charge of misconduct levelled against him with a further prayer to keep the departmental proceeding in abeyance pending the disposal of the criminal case initiated against him on the self-same allegations. The Enquiry officer, however, turned down the said prayer and the departmental proceeding was proceeded with. The petitioner pointed out incongruities in the statement of prosecution witnesses including the complainant who was examined and cross-examined as PW 1 as also non- examination of any independent eye-witness to substantiate the allegation of outraging the modesty of Miss Tewary. There was none from the crowd to corroborate the evidence of the complainant. Despite glaring inconsistencies in the statement of Police Personnel examined by the Disciplinary Authority and also patent irregularities in conducting the proceeding, the Enquiry officer found the petitioner guilty of the charge brought against him. Subsequently, the Deputy Commissioner of Police, Headquarters, (Administration, Calcutta) being the Disciplinary Authority passed the final order holding the petitioner guilty and the extreme punishment of dismissal from service with effect from 18.1.2000 (Afternoon) was imposed upon the petitioner during the pendency of the criminal =4= proceeding against him. An appeal was also preferred against the said final order before the Joint Commissioner of Police (Administration) being the Appellate Authority but the order of Disciplinary Authority was affirmed by the appellate authority without applying his mind.
6. Against such order of dismissal, the petitioner moved O.A. 1254 of 2000 before the learned West Bengal Administrative Tribunal praying inter alia for rescinding the order of the dismissal of the petitioner passed by the Disciplinary Authority in departmental proceeding No. 11/99 and also the appellate order passed by the Appellate Authority. During the pendency of O.A. 1254 of 2000 before the learned West Bengal Administrative Tribunal, G.R. Case No. 295 of 1999 under Section 354 IPC arising out of Section J case No. 59 dated 3.2.99 was disposed of and the petitioner was found not guilty of the alleged offence under Section 354 IPC and he was acquitted of the offences alleged against him in terms of Section 255(1) CrPC vide order dated 26.3.2002 passed by the learned Metropolitan Magistrate, 7th Court, Calcutta. By filing a supplementary application, the order of acquittal passed in favour of the petitioner was also brought to the notice of the learned Tribunal.
7. After hearing the learned counsel of both the parties and on perusal of averments made in the Petition, Reply, Rejoinder and supplementary application, the learned Tribunal disposed of the application holding inter alia that the Disciplinary Authority should reconsider the question of punishment =5= once again. The matter was left totally for the consideration of the Disciplinary Authority whether the petitioner can be inflicted any other punishment in the eye of law under the Police regulation. Accordingly the petitioner was granted liberty to file an application for reconsideration of the punishment order within 8 weeks. The Disciplinary Authority was also asked to consider the matter and decide the same in accordance with law within 8 weeks from the date of receipt of the application from the petitioner.
8. Being aggrieved by and dissatisfied with the said judgment of the learned Tribunal dated 4.8.2009, the petitioner preferred this writ application for redressal of his grievances. Appearing in support of the writ petition, Mr. D. N. Roy, learned counsel for the petitioner argues that the departmental enquiry and criminal proceeding being based on the same set of facts, charges, evidence and witnesses and the delinquent Constable being honourably acquitted in criminal trial he cannot be held guilty in the departmental proceeding. In support of his contention, he referred to the ruling of the Apex Court reported in 2006 (5) SCC 446 [G. M. Tank vs. State of Gujarat & Ors.]. He also relied upon another ruling of the Apex Court reported in 2008 (12) SCC 522 (State of Punjab vs. Prem Swaroop) wherein it is held that initiation of departmental enquiry after acquittal in criminal case can be held only in exceptional cases even though the general proposition of law reiterates that there is no bar against the initiation of departmental proceeding after acquittal in the criminal case.
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9. He has also sought to rely upon another ruling of the Apex Court reported in 2008 (4) SCC 1 [Union of India & Ors. vs. Naman Singh Sekhawat). It is held therein that initiation of a departmental enquiry after acquittal in the criminal case, even though is permissible in law, such power has to be exercised bona fide, fairly and reasonably when there is evidence to prove the charges. In support of his contention, he has further referred to another ruling of the Apex Court reported in (1981) 2 SCC 714 [Corporation of the City of Nagpur, Civil Lines vs. Ram Chandra & Ors.]. It is decided therein that the acquittal of the delinquent employee in a corresponding criminal case would not necessarily lead to discontinuance of the departmental enquiry pending against him. However, continuance or discontinuance is a matter to be decided by the concerned authority on facts and circumstances of the case.
10. The learned counsel for the petitioner, therefore, is of the view that the learned Tribunal has committed a serious irregularity both on fact and law. The learned Tribunal has not taken into consideration the factual aspect of the matter that the Disciplinary Authority failed to bring sufficiently strong corroborative materials on record to substantiate the charge levelled against him as also the factum of his acquittal of the offence alleged to have been committed by him. The learned Tribunal has also not taken into account the irregularities committed by the Enquiry officer as also by the Disciplinary Authority in course of the departmental proceeding. According to him, the findings of the Enquiry officer as also the order of dismissal passed by the Disciplinary Authority are =7= neither factually nor legally sustainable. It is, therefore, submitted by him that the order impugned passed by the learned Tribunal is liable to be set aside.
11. Per contra the correctness of submission advanced on behalf of the writ petitioner is disputed by Mr. Talukdar, learned counsel for the Disciplinary Authority. It is argued by him that the scope of judicial review in a departmental enquiry is a very limited one. The Administrative Tribunal cannot reappreciate the evidence and reach its conclusion in a case where an order of dismissal was passed after holding a departmental enquiry. In order to strengthen his submission, he has relied upon a ruling of the Apex Court reported in (1996) 7 SCC 509 (State of Tamilnadu vs. S. Subramanium). His further contention is that the court should not interfere with the decision of the administrator unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court in the sense that it was in defiance of logic or moral statement. In this connection, he has referred to a ruling of the Apex Court reported in 2003 (4) SCC 364 (Chairman and Managing Director, United Commercial Bank & Ors. vs. P. C. Kakkar). He has further referred to another decision of the Apex Court reported in (2007) 10 SCC 385 (Noida Entrepreneurs Association vs. Noida & Ors.) and argued that the departmental enquiry is distinguished from criminal proceeding and standard of proof required in departmental enquiry is not the same as required to prove a criminal charge.
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12. It is next argued by him that an order of acquittal in a criminal trial is no bar to draw up a disciplinary proceeding since the criminal proceeding and departmental proceeding are entirely different and they operate in different fields and have different objects. The acquittal in a criminal trial cannot be equated with a declaration of innocence of the petitioner in a departmental proceeding. In this context, he has relied upon a ruling of the Division Bench of this High Court reported in 2007 (3) CHN 77 (Airport Authority of India & Anr. vs. Prodip Kr. Banerjee & Ors.). It is, therefore, submitted by Mr. Talukdar that the petitioner has failed to make out a case of judicial review. In fact, there is no cogent ground justifying interference of this writ court for setting aside the final order passed against the petitioner in a departmental proceeding involving serious charge against the petitioner. According to him, the writ petition is liable to be dismissed.
13. We have very carefully taken into consideration the rival submission so advanced on behalf of both the sides in the light of principles of law laid down in different judicial pronouncements of the Apex Court. Before entering into the merit of this writ petition, it would be convenient to enumerate undisputed facts for convenience in discussion as under:
a) On 3.2.99, one Ekta Tewari, a college student lodged an FIR alleging outraging of her modesty by Nanigopal Mazumdar, a Police Constable and Section J case No. 59 dated 3.2.99 under Section 354 IPC was started against him and the said Police case subsequently gave rise to G.R. Case No. 295/99.
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b) A departmental proceeding being No. 111 dated 31.5.99 was initiated against SYCE No. 153/65, Nanigopal Mazumdar of Calcutta Mounted Police, Calcutta Police on the self-same allegation and he was served with a show cause notice.
c) During the pendency of the criminal proceeding i.e., G. R. Case No. 295/99, final order of dismissal from service was passed by the Deputy Commissioner of Police, Headquarters, Calcutta Police vide order dated 6.1.2000 with effect from 18.1.2000 against the delinquent.
d) The complainant was examined and cross-examined in the departmental proceeding but she subsequently did not appear before the learned Metropolitan Magistrate, 7th Court, Calcutta as a witness during the trial of the criminal case i.e., G. R. Case No. 295/99.
e) The I.O. of the Police case was also examined as PW 3 in the departmental proceeding and he admitted during cross-examination that he could not note down the names of the members of the public who surrounded the charged Officer as he was busy with VIP duty.
f) No independent eye-witness was examined either in the departmental proceeding or during criminal trial.
g) The prayer of the petitioner urging the Disciplinary Authority to keep the proceeding against him in abeyance on the ground that his defence in criminal court would be highly prejudiced if the witnesses are examined and cross-examined in the disciplinary proceeding before the finalization of the criminal case was turned down by the Enquiry Officer.
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h) During her cross-examination before the Enquiry Officer the complainant stated that she felt human hands on her waist at the material point of time.
i) The delinquent employee admitted that if there was such human touch on her waist, it might have happened due to his haste to go down the steps quickly to reach the station to avail of Metro Rail.
14. Against the backdrop of such factual scenario, it would be apt to examine as to whether the prayer for judicial review of the order of dismissal passed against the petitioner in the departmental proceeding is entertainable in this writ jurisdiction and if it is answered in the affirmative, then to what extent?. In that context of the matter, the following observation of the Hon'ble Apex Court is reproduced as under:
"......... It is the exclusive domain of the disciplinary authority to consider the evidence on record and to record findings whether the charge has been proved or not. It is equally settled law that technical rules of evidence have no application for the disciplinary proceedings and the authority is to consider the material on record. ......... It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the view of the Court or Tribunal. When the conclusion reached by the authority is based on evidence, Tribunal is devoid of power to reappreciate the evidence and would (sic) come to its own conclusion on the proof of the charge. The only consideration the Court/Tribunal has in its judicial review is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. ......... "
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15. It is, therefore, quite crystal clear that even though, the learned Tribunal/court is devoid of power to reappreciate the evidence adduced before the Enquiry Authority, its power of judicial review can be exercised to consider whether the conclusion of the Disciplinary Authority is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. The cardinal principle is to ensure fair treatment to the delinquent employee and to evaluate as to whether the decision reached by the Disciplinary Authority after assessing evidence on record is correct. The first and foremost duty of the Enquiry Authority is to reach its own conclusion on the basis of evidence on record. It is the mandate of service law that a conclusion of the Disciplinary Authority must be based on evidence on record on its proper appreciation in right perspective of the matter. If it was a case of no evidence or perfunctory appreciation of materials on record in arbitrary manner, the learned Tribunal/court is not devoid of power of interference in such circumstances. In such view of the matter, this writ court would now proceed to examine the materials on record upon which the Disciplinary Authority has acted upon to find the Charged Officer guilty of the charge, in the light of the principles of law enunciated in the afore-cited rulings.
16. In the case of Chairman and Managing Director, United Commercial Bank & Ors. (supra) it is also held in paragraph 11 as under:
"The common thread running through in all these decisions is that the court should not interfere with the administrator's decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the court, in the sense that it was in defiance of logic or moral = 12 = standards. ......... The scope of judicial review is limited to the deficiency in decision-making process and not the decision."
17. Adverting to the statements given before the Enquiry Officer by the complainant, it appears that she gave a different version of the alleged incident. She deposed before the Enquiry Officer that on 3.2.99 she was going to her college at about 9.05 hrs in the morning. While she was stepping down towards Metro Railway subway at the crossing of J.L.Nehru Road and S.N.Banerjee Road, at that point of time one person 'caught hold of her by embracing behind'. She thought that 'the person may be one of her girl friends' but noticed that the person was an unknown male. She shouted thief-thief and ran after him. Some members of the public also chased him and caught hold of him opposite to Peerless Inn near the KMC Office. She has thus introduced a new story of shouting 'thief-thief' and also running after him on her own. In her cross- examination she has, however, deviated from her statement made in-chief and divulged that the said person misbehaved with her by touching her waist. She further added that she felt the human hands at her waist and she saw an unknown person touching her waist from behind and she shouted thief-thief.
18. Mr. Talukdar has, however, pointed out that the extent of such a human touch was so much intimate that it irritated the girl. Be that as it may, the fact remains that there is a glaring departure in her statement before the Enquiry Officer from that of the complaint lodged by her before the Police immediately after the alleged occurrence. She has alleged inter alia in her = 13 = written complaint that while she was entering in the subway of Metro on J.L.Nehru Road near its crossing with S.N.Banerjee Road, suddenly one person caught hold of her from behind with a bad intention. She thought that the person might be one of her girl friends. But as soon as she turned over, she noticed that the person was a male person and not known to her. She raised alarm. The person started to run away. Some public chased him and caught him finally. She brought the person to a nearby Police Officer in front of the Peerless Inn and then taken to Police Station. As per her instantaneous written statement, the incident took place while she was entering the subway of Metro Rail. But in her statement before the Enquiry Officer she stated otherwise. She deposed that while she was stepping down the staircase of Metro Rail, she felt human touch on her waist. Her FIR evinces that she simply raised alarm. But in her evidence before the Enquiry Officer it was stated that she shouted thief-thief. It is, therefore, quite evident that after feeling human hands on her waist, she raised alarm. In that context of the matter, the defence taken by the delinquent petitioner in his written statement of defence that the general situation at the Metro Railway entrance at about 9.00 A.M. is the start of the rush hour in the morning and the place was quite crowded with people coming out of and going into the Metro channel is required to be taken into consideration. In such trajectory, his written defence that it may be possible that in his haste to go down the steps quickly, his hand might have touched her waist. But as she suddenly shouted thief-thief the delinquent petitioner became frightened and the people started chasing him and finally caught hold of him.
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19. Against such startling disclosure of the complainant in her cross- examination that she felt human hands on her waist, vis-a-vis, the Charged Officer's frank admission in his written statement of defence that in his haste to board the train, his hand might have touched her waist, has not been taken into consideration by the Enquiry Officer in its right perspective. Rather such defence of the delinquent petitioner has been dealt with by the Enquiry Officer in a very casual fashion. He has dealt with this important aspect of the matter in the manner as indicated below. In the penultimate paragraph of the Enquiry Report the Enquiry Officer has taken exception since the C.O. started running without praying apology and has thus sought to demolish the defence case of happening the incident accidentally. He has, therefore, commented upon the conduct of the Charged Officer as under:
"The C.O. failed to submit reasonable explanation why he did not confront PW 1 then and there. If the incident happened accidentally then without praying apology to the PW 1 why the C.O. started running towards Peerless Hotel. It may be presumed that a young girl by her female instinct can understand the ill motive/bad intention of a young male person for his acts/behaviour towards a female person."
20. The Enquiry Officer has, however, over looked one important fact that since the complainant herself raised alarm by shouting thief-thief, the delinquent employee began to run being frightened to avoid public humiliation and assault. In fact, the Enquiry Officer has failed to take into account the alleged happening in its entirety on the touchstone of the preponderance of = 15 = probability. The contradictions and inconsistencies which stare in the face of her testimony before the Enquiry Officer as pointed out by the Charged Officer in his written defence has not been properly appreciated by the Enquiry Officer in its right perspective. In fact, he has not even allowed reasonable time to the delinquent to get the criminal matter disposed of prior to taking any decision in disciplinary proceeding. Even the Charged Officer's prayer to allow him 10 days' more time to file Reply was rejected. He has thus not been given fair treatment in combating allegation of outraging the modesty of a young girl in course of enquiry proceeding. The principles of fair play and equitable justice have been flouted and this has caused a serious prejudice to the delinquent employee because of blatant violation of the principles of natural justice which provides that the delinquent should be afforded reasonable opportunity of being heard. Rather he has been forced to disclose his defence in course of the enquiry proceeding by cross-examining defence witness prior to the commencement of the criminal trial and this has undoubtedly caused a serious prejudice to him to defend himself effectively and meaningfully during the criminal trial. These are some of the procedural lapses on the part of the Disciplinary Authority. It is a case of sheer non-application of mind by the Disciplinary Authority since the authority has not even cared to scrutinize the enquiry report in the light of evidence adduced before the Enquiry Officer. There is, in fact, nothing on record to indicate that the Disciplinary Authority has made any fair appraisal of the materials on record to judge the correctness of the Enquiry Officer's conclusion that the charge of outraging modesty of a girl has been proved against the delinquent employee.
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21. Furthermore, the petitioner's acquittal in the criminal proceeding which was based on identical and similar set of facts and evidence could not admittedly be taken into consideration by the Disciplinary Authority since the criminal trial was not concluded at that material point of time. A close look to the judgment passed in G.R. Case No. 295/99 reveals that the criminal charge has not failed on technical grounds and the accused was not acquitted of the alleged offence on benefit of doubt. There is also nothing on record to indicate that any of the witnesses was won over by the defence. Rather the learned trial court has unequivocally held that the prosecution has failed to prove the alleged offence under Section 354 IPC against the accused and as such the accused petitioner was acquitted of the alleged offence. It is also well settled position of law that the acquittal of the delinquent employee in a criminal trial is a circumstance which is required to be taken into consideration by the Enquiry Authority for the purpose of arriving at a just conclusion regarding the guilt of the Charged Officer. No plausible explanation is forthcoming as to why the defacto complainant herself did not appear as a witness before the learned Metropolitan Magistrate, 7th Court, Calcutta during trial. In fact, mystery deepens when the prosecution itself also did not take any positive step to ensure her attendance before the learned trial court as a witness. The next question comes to our mind that if the Police Authority was sure of the involvement of the Charged Officer in outraging the modesty of Miss Tewari, in that event, why the State did not move before the Superior court challenging the order of acquittal.
= 17 = Even though the alleged incident took place in the peak hours at about 9.05 hrs. in the morning in the subway of Metro Channel and some people allegedly chased the petitioner, not a single independent eye-witness was examined by the I.O. in course of investigation for the reasons best known to him.
22. There is no doubt that the statement of the victim carries much weight. But if such statement is inconsistent and full of incongruities vis-à-vis earlier recitals in the FIR, the same should not be relied upon. The Enquiry Officer is required to look for corroboration by eye-witnesses but unfortunately no eye-witness has been examined to corroborative the version of the complainant before the Enquiry Authority. There is no doubt that the standard of proof in a criminal trial and in a departmental proceeding is quite different. In a criminal trial the charge is required to be proved beyond reasonable doubt but in a departmental proceeding, only preponderance of probabilities is sufficient to hold the delinquent employee guilty of the charge. But we wonder to see the sorry state of affairs in leading the evidence before the Enquiry Authority. Even to look into preponderance of the probability, there must be some sort of evidence to indicate that in all probabilities, the alleged incident happened as depicted in the FIR. But, in fact, it is a case of no evidence to prove the charge arising out of complainant's allegation of outraging her modesty by the petitioner.
23. In the ultimate analysis of oral evidence on record, it prima facie appears that the victim felt human hands on her waist and the delinquent also = 18 = admits that such an incident may occur accidentally in view of the crowded Metro Rail station during the peak hours in the morning especially when he was in a hurry to board a train. To judge the preponderance of probabilities, this important and pertinent aspect of the matter has not been dealt with by the Enquiry Officer in its proper perspective.
24. Taking all these facts and circumstances of the instant case together into account, we are of the considered view that the Enquiry Officer has proceeded with a close mind and it has resulted denial of natural justice to the delinquent Constable. He has thus failed to defend himself adequately and meaningfully in the departmental enquiry especially when a criminal case was pending against him on the self-same allegation before the learned Metropolitan Magistrate, 7th Court, Calcutta at the material point of time. It would, therefore, be a travesty of justice if a major penalty like dismissal from service is passed in case of no evidence. It is also equally a matter of deep regret and great concern if there is no fair appeal against the final order of dismissal and the Appellate Authority also failed to exercise its power vested in it as quasi judicial Authority in scrutinizing proceedings of departmental enquiry on application of its judicious mind in a just and equitable manner. But the appellate order dated 11.4.2000 does not reflect any detailed discussion elucidating the reasons for opining that the charge has been proved beyond any doubt as also confirming the punishment imposed by the authority.
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25. It is well settled that it is the normal rule that the delinquent employee must have a fair trial and a fair appeal. True, the standard of proof required in recording a finding of conviction in a criminal case and in a departmental proceeding is distinct and different. In criminal trial the charge is required to be proved beyond all reasonable doubt but in a departmental proceeding preponderance of probability would serve the purpose. But at the same time it is also to be borne in mind that the Enquiry Officer as also the Appellate Authority performs a quasi-judicial function. Therefore, a duty is cast upon them to weigh the evidence on record both oral and documentary and on analyzing the same with abundant care, caution and circumspection, both of them are to arrive at a conclusion that these had been preponderance of probability to prove the charge on the basis of materials on record. The Disciplinary Authority also cannot refuse to consider the relevant facts and also cannot reject the relevant testimony of witnesses only on the basis of surmise and conjectures (vide (2006) 5 SCC 88 [M. V. Bijlani vs. Union of India]).
26. As elaborated in preceding paragraphs, the report of the Enquiry Officer, in the present case, was illogical for all practical purposes and the same also suffers from procedural impropriety. In fact, it was shocking to the conscience of court/tribunal that such order of dismissal was passed without adhering to the rational standard and the golden principles of natural justice. Such telling circumstances, undoubtedly, give a scope of judicial review to make up the 'deficiency in decision-making process'.
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27. In this context, the observations of the Apex Court made in the case of Swati Singh vs. State of Rajasthan reported in (1986) 3 SCC 454 are quoted below to emphasize the paramount importance of the principles of natural justice in a departmental proceeding:
"16. ......... But in a departmental enquiry entailing consequences like loss of job which nowadays means loss of livelihood. There must be fair play in action; in respect of an order involving adverse or penal consequences against an employee, there must be investigations to the charges consistent with the requirement of the situation in accordance with the principles of natural justice insofar as these are applicable in a particular situation.
17. The application of those principles of natural justice must always be in conformity with the scheme of the Act and the subject-matter of the case. It is not possible to lay down any rigid rules as to which principle of natural justice is to be applied. There is no such thing as technical and circumstances of the case, the nature of the enquiry, the rules under which the tribunal is acting, the subject-matter to be dealt with and so on. Concept of fair play in action which is the basis of natural justice must depend upon the particular lis between the parties."
28. Viewed in the light of foregoing discussion and fortified with the various afore-mentioned rulings of the Apex Court, we are of the considered view that the disciplinary authority has not exercised its power bona fide, fairly and reasonably when there is no evidence to prove the charge. As already indicated, there is no independent witness to corroborate the version of the complainant whose evidence before the Enquiry Officer also suffers from glaring = 21 = inconsistencies and inherent improbabilities. Evidence of Police Officers who were far away from the alleged place of occurrence is of no assistance to reveal the truth and to come to a definite finding about the veracity of the complaint. Evidence on record clearly suggests that at least two persons from the crowd chased the petitioner. But the I.O. did not examine any of them or any other eye- witnesses from the crowd on the plea of his engagement with the VIP duty. The complainant herself even did not appear before the learned trial court to establish the truth in the criminal trial. It was held by the learned trial court in unequivocal language that the prosecution has not been able to prove the alleged offence against the accused, and as such he deserves acquittal. Such a positive finding fairly gives a scope to meet out justice to the petitioner. Even if the Government was interested to get the truth, the order of acquittal could have been tested before the superior forum. But the Government accepted the judgment and it was not challenged before the appropriate court.
29. Despite all these lacuna and inherent inconsistencies in the version of the complainant the delinquent Constable has been subjected to a disciplinary proceeding and such proceeding was also concluded with undue haste without awaiting the disposal of the criminal proceeding pending against him and an order of dismissal was thrust upon the petitioner.
30. For the foregoing reasons, we cannot but hold that this is a case of no evidence against the delinquent Police Constable. We feel constrained to = 22 = opine that the Enquiry Officer had conducted the enquiry only one way and had not tried to get the evidence in respect of plausible explanation furnished by the charged Officer in course of enquiry to come to a just and reasonable finding. Even though there was every possibility of causing prejudice to the charged Officer in his defence at the trial in the criminal case, because of disclosure of his defence in departmental enquiry, the charged officer was not allowed any reasonable time to get the criminal trial disposed of. The procedure followed in departmental proceeding is not in conformity with the principles of natural justice. Such procedural lapse has, undoubtedly, vitiated the decision-making process. Under these circumstances, it would be unjust and unfair to sustain the findings recorded in the departmental proceedings against the petitioner.
31. In view of the foregoing discussions, we cannot but hold that there is no evidence to corroborate the charge against the petitioner. The case of the Disciplinary Authority is mainly based upon the testimony of the complainant who is althrough inconsistent and incongruous in her evidence before the Enquiry Officer. In support of the allegation, there is no evidence on record. We, therefore, feel inclined to interfere with the final order of dismissal passed by the Disciplinary Authority and subsequently confirmed by the Appellate Authority.
32. In such trajectory, we set aside the judgment and order dated 4.8.2009 passed by the learned Administrative Tribunal in O.A. No. 1254/2000 whereby the Disciplinary Authority has been asked to reconsider the order of = 23 = punishment passed against the petitioner. The final order of dismissal passed by the Deputy Commissioner of Police, Head Quarters, Calcutta vide order dated 6.1.2000 in connection with Proceeding No. 11 dated 31.5.1999 against the petitioner dismissing him from Calcutta Police with effect from 18.1.2000 (Afternoon) as also the appellate order dated 11.4.2000 passed by the Joint Commissioner of Police, Calcutta are set aside and quashed with a direction to reinstate the petitioner forthwith with all consequential benefits.
33. The writ petition stands allowed accordingly. But in the facts and circumstances of the case, without costs.
34. Let a Xerox copy of this order be supplied to the parties, if applied for, on priority basis, on compliance of usual formalities.
I agree. (Ashim Kumar Banerjee, J.)
(Raghunath Ray, J.)