Jharkhand High Court
No.002210090 Ex-Lady Constable Monika ... vs Union Of India Through Ministry Of Home ... on 11 September, 2018
Bench: D.N. Patel, Amitav K. Gupta
1 L.P.A. No.732 of 2015
IN THE HIGH COURT OF JHARKHAND AT RANCHI
L.P.A. No. 732 of 2015
No.002210090 Ex-Lady Constable Monika Dutta, Daughter of - Sri
Krishna Kant Dutta, resident of Subhash Pally, PO- Gobardanga, PS-
Habra, District - 24 Pargana (North), West Bengal
... ... ... ... ... Petitioner/Appellant
Versus
1. Union of India through Ministry of Home Affairs, Government of
India, New Delhi, Office at North Block, PO- Sansad Marg, PS- Parliament
Street, District - South Delhi
2. Inspector General, Central Industrial Security Force, Eastern Zone,
Headquarters, Boring Road, PO- Boring Road, PS- Phulwari, District
Patna-800013
3. Deputy Inspector General, Central Industrial Security Force,
B.C.C.L. Unit, Dhanbad, PO- Koylanagar, PS- Dhanbad, District -
Dhanbad
4. Commandant, Central Industrial Security Force, B.C.C.L. Unit,
Dhanbad, PO- Koylanagar, PS- Dhanbad, District - Dhanbad
... ... ... ... Respondents/Respondents
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CORAM: HON'BLE MR. JUSTICE D.N. PATEL
HON'BLE MR. JUSTICE AMITAV K. GUPTA
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For the Appellant: M/s. Rakesh Kumar Sinha, Advocate
For the Respondents: M/s. A.C. to Sri Rajiv Sinha, A.S.G.I.
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06/Dated: 11 September, 2018
th
(Oral order)
Per D.N. Patel, J.
1) This Letters Patent Appeal has been preferred by the original petitioner, whose writ petition being W.P. (S) No.5304 of 2010 was dismissed by the learned Single Judge vide judgment and order dated 8 th October, 2015, whereby, the order of removal passed by the disciplinary authority was not interfered with and, therefore, the original petitioner has preferred the present Letters Patent Appeal.
2) Having heard learned counsel for both sides and looking to the facts and circumstances of the case, it appears that this appellant was 2 L.P.A. No.732 of 2015 appointed as Lady Constable in the Central Industrial Security Force (hereinafter referred to as the 'CISF' for the sake of brevity).
3) For the misconducts committed by this appellant, charge-sheet was issued by the respondents dated 22nd September, 2009. So far as Charge No.1 is concerned, it was about the illicit relationship with another male constable namely Harkirath Singh Sandhu, so far as Charge No.2 is concerned, it is to the effect that this Lady Constable was calling a male Constable at Women Barrack/quarters, so far as Charge No.3 is concerned, it is about being her an alcoholic, so far as Charge No.4 is concerned, it is that this appellant-delinquent deserted the Unit on and from 03.09.2009 till 09.09.2009.
4) For the aforesaid charges, Enquiry Officer was appointed, enquiry was conducted and after examination of eight witnesses, Enquiry Officer gave his report on 30th January, 2010 (Annexure 1) to the effect that Charge No.1 and Charge No.3 are not proved, whereas, Charge No.2 and Charge No.4 are proved.
5) The disciplinary authority disagreeing with the report given by the Enquiry Officer about the conclusion of Charge No.1 and Charge No.3, issued a show-cause notice dated 12th February, 2010 assigning the reasons for his disagreement.
6) A reply was given by this appellant-delinquent and ultimately, the disciplinary authority arrived at a conclusion that charge No.1 and charge No.3 have also been proved.
7) Thus, all the four charges have been proved and the disciplinary authority has passed an order of removal of this appellant dated 09.03.2010 (Annexure 2). This order was passed by Commandant of the CISF.
8) Departmental appeal was preferred by this appellant. Opportunity of being heard was given by the Deputy Inspector General of Police of the CISF and the departmental appeal preferred by this appellant was dismissed vide order dated 29th April, 2010. Thus, Deputy Inspector General of Police of CISF has dismissed the appeal preferred by this appellant.
9) Being aggrieved and feeling dissatisfied by this order of the departmental appellate authority, a revision application was preferred by 3 L.P.A. No.732 of 2015 the delinquent and the revisioal authority - Inspector General of Police of CISF, after giving adequate opportunity of being heard to the delinquent, dismissed the revision application vide order dated 14th July, 2010.
10) Being aggrieved and feeling dissatisfied by the order of removal passed by the disciplinary authority dated 09.03.2010, as well as by the departmental appellate authority dated 29 th April, 2010, as well as being aggrieved and feeling dissatisfied by the order passed by the revisional authority dated 14th July, 2010, this appellant preferred a writ petition being W.P. (S) No. 5304 of 2010, which was dismissed by the learned Single Judge vide judgment and order dated 8th October, 2015 and, hence, this Letters Patent Appeal has been preferred by the original petitioner mainly on the grounds that disciplinary authority has not properly appreciated the evidences on record. Learned counsel for the appellant has further submitted that the disciplinary authority has not properly appreciated the evidence given by Dipti Manjhi, with whom this appellant-delinquent was residing in Women's Barrack/quarters/ residence. This is the major and only contention raised by the counsel for the appellant.
11) Having heard learned counsel for both sides and looking to the facts and circumstances of the case, we see no reason to entertain this Letters Patent Appeal mainly for the following facts, reasons and judicial pronouncements: -
(i) This appellant is the original petitioner who was working as a Lady Constable in the Central Industrial Security Force and because of as many as four misconducts, charge-sheet was issued on 22 nd September, 2009, Enquiry Officer gave his report on 30 th January, 2010, Charge No.1 was about illicit relationship, Charge No.2 was about calling a male constable in the Women's Barack/quarters, Charge No.3 was about being a habitual drunkard and Charge No.4 was that this delinquent appellant deserted the Unit from 3 rd September, 2009 to 9th September, 2009.
(ii) Enquiry Officer gave a report on 30 th January, 2010 to the effect that Charge No.2 and Charge No.4 are proved, whereas charge No.1 and charge No.3 are not proved.
(iii) Disciplinary authority was not agreeable with the conclusion 4 L.P.A. No.732 of 2015 arrived at by the Enquiry Officer so far as Charge No.1 and Charge No.3 are concerned and, hence, with detailed reasons, show-cause notice was issued dated 12th February, 2010.
(iv) After giving adequate opportunity of being heard to the delinquent-employee, the disciplinary authority has arrived at a conclusion that Charge No.1 and Charge No.3 have also been proved. Thus, all the four charges have been held as proved - two by the Enquiry Officer and rest two by the disciplinary authority. (V) The disciplinary authority has passed an order of removal dated 09.03.2010 (Annexure 2).
(vi) Much has been argued out by the counsel for the appellant about the evidence given by Dipti Manjhi and submitted that the evidence given by Dipty Manjhi was not properly appreciated by the disciplinary authority. We are not accepting the contention raised by the appellant mainly for the reasons that,
(a) We are not sitting in appeal against an order passed by the Enquiry Officer, as well as the order passed by the disciplinary authority, so far as their conclusions to the effect that the charges levelled against this delinquent have been proved.
(b) Dissection of evidence with fine nicety, cannot be done by the Court while exercising power under Article 226 of the Constitution of India.
(c) The charges levelled against this appellant have been held as proved on 'preponderance of probabilities'.
(d) Charge is held to be proved when the disciplinary authority is satisfied on the basis of the evidences on record.
There is no mathematical formula nor there is any statistical rule when a charge is said to have been proved. Satisfaction about the proof of charge must be based on the objective facts. Thus, suffice it to say that if a conclusion is arrived at by the disciplinary authority or by the Enquiry Officer on the basis of the evidences on record, it will be deemed that the charges levelled against the delinquent have been proved, on facts. This Court will be too slow while exercising powers 5 L.P.A. No.732 of 2015 under Article 226 of the Constitution of India to review these conclusions.
(e) Power of judicial review is not required to be exercised by this Court, looking to the evidences on record, otherwise, there will be no end like the original Civil Suit, then a First Appeal, then a Second Appeal and thereafter, S.L.P., etc.
(f) In the facts of the present case, we are fully satisfied with the conclusion arrived at by the disciplinary authority so far as Charge No.1 and Charge No.3 are concerned. They are based upon the evidences on record. It cannot be said that without any evidence on record, a conclusion has been arrived at by the disciplinary authority that Charge No.1 and Charge No.3 have been proved.
(vii) It has been held by Hon'ble The Supreme Court in the case of Rae Bareli Kshetriya Gramin Bank Vs. bhola Nath Singh reported in (1997) 3 SCC 657 at paragraph 6 as under:-
"6. Under these circumstances, the question arises whether the High Court would be correct in law to appreciate the evidence and the manner in which the evidence was examined and to record a finding in that behalf. Judicial review is not akin to adjudication of the case on merits as an appellate authority. The High Court, in the proceedings under Article 226 does not act as an appellate authority but exercises within the limits of judicial review to correct errors of law or procedural errors leading to manifest injustice or violation of principles of natural justice. In this case, no such errors were pointed out nor any finding in that behalf was recorded by the High Court. On the other hand, the High Court examined the evidence as if it is a court of first appeal and reversed the finding of fact recorded by the enquiry officer and accepted by disciplinary authority. Under these circumstances, the question of examining the evidence, as was done by the High Court, as a first appellate court, is wholly illegal and cannot be sustained."
(Emphasis supplied)
(viii) It has been held by Hon'ble The Supreme Court in the case 6 L.P.A. No.732 of 2015 of Govt. of A.P. Vs. Mohd. Nasrullah Khan reported in (2006) 2 SCC 373, at paragraphs 10 and 11 as under:-
"10. From the finding recorded by the High Court it clearly appears that the High Court reappreciated the evidence as an appellate authority. Apart from reappreciating the evidence, which is not permissible in law, the High Court also fell in grave error by directing the Government Pleader and the learned counsel for the respondent herein to again view the cassettes. It is on record that the inquiry officer relied on the video cassettes displayed during the inquiry as part of additional evidence. The finding has been clearly recorded by the inquiry officer on the basis of the evidence adduced by PWs 1, 2, 3 and 4 during the inquiry.
11. By now it is a well-established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an appellate authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by reappreciating the evidence as an appellate authority."
(Emphasis supplied)
(ix) It has been held by Hon'ble The Supreme Court in the case of SBI Vs. Narendra Kumar Pandey reported in (2013) 2 SCC 740 at paragraph 25 as under:-
"25. The High Court, in our view, under Article 226 of the Constitution of India was not justified in interfering with the order of dismissal passed by the appointing authority after a full-fledged inquiry, especially when the Service Rules provide for an alternative remedy of appeal. It is a well-accepted principle of law that the High Court while exercising powers under Article 226 of the Constitution does not act as an appellate authority. Of course, its jurisdiction is circumscribed and confined to correct an error of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of the principles of natural justice. In SBI v. Ramesh Dinkar 7 L.P.A. No.732 of 2015 Punde this Court held that the High Court cannot reappreciate the evidence acting as a court of appeal. We have, on facts, found that no procedural irregularity has been committed either by the Bank, presenting officer or the inquiring authority. Disciplinary proceedings were conducted strictly in accordance with the Service Rules."
(Emphasis supplied)
(x) In view of the aforesaid decisions, we are not inclined to accept the contention raised by this appellant, which is only the contention that the disciplinary authority has not properly appreciated the evidence given by Dipty Manjhi.
(xi) We have perused the order passed by the disciplinary authority dated 09.03.2010 (Annexure 2). It is absolutely based upon the evidences on record.
(xii) The evaluation of the evidences is the subjective satisfaction of the disciplinary authority and we are not inclined to change the subjective satisfaction of the disciplinary authority, which is based upon the objective evidences on record, while exercising our power of judicial review under Article 226 of the Constitution of India.
(xiii) Thus, adequate opportunity of being heard was given to this appellant. There is no procedural lacuna in holding the disciplinary proceeding. Disciplinary authority has also given a show-cause notice assigning reasons why the disciplinary authority was not agreeing with the conclusions of the Enquiry Officer, so far as charge No.1 and charge No.3 are concerned. Further hearing was also given by the disciplinary authority to the delinquent and thereafter, the disciplinary authority has arrived at a conclusion which was based on the evidences on record. Thus, there is no illegality in holding the departmental proceeding against this appellant.
(xiv) Once a departmental enquiry has been held as legal and valid, the only question left out to be decided by this Court is about the quantum of punishment.
(xv) Nothing has been argued out by the counsel for the appellant so far as quantum of punishment is concerned.
8 L.P.A. No.732 of 2015(xvi) Looking to the nature of misconduct committed by this appellant and looking to the fact that this appellant was working as a Constable in the CISF, a disciplined force, the quantum of punishment of removal cannot be labelled as shockingly disproportionate, nor it can be labelled as unreasonably excessive.
12) As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, we, thus, see no reason to entertain this Letters Patent Appeal, as no error has been committed by the learned Single Judge while deciding W.P. (S) No.5304 of 2010 vide judgment and order dated 8th October, 2015. We see no reason to take any other view than what is taken by the learned Single Judge. Hence, there is no substance in this Letters Patent Appeal and the same is, therefore, dismissed.
(D. N. Patel, J)
Manoj/ (Amitav K. Gupta, J)