Jharkhand High Court
Union Of India Through Secretary ... vs Harendra Singh on 27 April, 2016
Equivalent citations: 2016 (4) AJR 696, (2017) 1 JCR 66 (JHA) (2017) 1 JLJR 337, (2017) 1 JLJR 337
Author: D.N. Patel
Bench: D. N. Patel, Ananda Sen
1 L.P.A. No.267 of 2013
IN THE HIGH COURT OF JHARKHAND AT RANCHI
LPA No. 267 of 2013
With
I.A. No. 5904 of 2013.
1. Union of India through Secretary, Ministry of Home Affairs, North
Block, Jaisalmer House, Lok Nayak Bhawan, New Delhi-1.
2. Inspector General, C.I.S.F., Eastern Sector Head Quarter, Boring
Road, Patliputra, P.O. + P.S.- Patliputra, Patna-13.
3. Deputy Inspector General C.I.S.F. Unit, BCCL, New Complex,
Koyla Nagar, P.O. and P,.S.- Dhanbad, District- Dhanbad.
4. Commandant CISF Unit, BCCL, Koyla Nagar, Dhanbad
............ Appellants.
Versus
Harendra Singh son of late Rampukar Singh, CISF Unit, 4th
Reserve BN, P.O. and P.S.- Dhurwa, District- Ranchi.
... ...Respondent.
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CORAM : HON'BLE MR. JUSTICE D. N. PATEL
HON'BLE MR. JUSTICE ANANDA SEN
------
For the Appellants : Mr. Rajiv Sinha, ASGI.
For the respondent : Absent
.........
21/Dated: 27th April, 2016
Per D.N. Patel, J.
(1) This Letters Patent Appeal has been preferred against the judgment
and order dated 8th March, 2013 delivered by learned Single Judge in
WP(S) No.864 of 2002, whereby the petition preferred by the writ
petitioner was allowed and the order of punishment passed by the
Disciplinary Authority as well as the Appellate Authority and the
Revisional Authority, has been quashed and set aside. Being aggrieved and
feeling dissatisfied with the aforesaid order, the original respondents have
preferred this Letters Patent Appeal.
(2) FACTUAL MATRIX OF THIS CASE
The respondent was a Constable in the Central Industrial
Security Force (for short 'CISF') bearing his Identification No.
932291323. The said constable was posted at Area-IV of M/s Bharat
2 L.P.A. No.267 of 2013
Coking Coal Limited (for short 'BCCL'). He was deployed at
Shatabdi Bhawan Strong Room, A.N. College, Patna in Company
613 of CISF during the Lok Sabha Elections of 1999. On 7.10.1999
he was deployed on duty from 17:00 hours to 21:00 hours with a
7.62 mm Rifle bearing Registration No. A-09985 and 50 rounds of
ammunitions. On 07.10.1999 during the inspection at 22:00 hours,
the respondent was found absent by the Company Commander. It
was detected that the respondent left the rifle, ammunitions and his
personal belongings in the strong room and fled from his work
place. On 09.10.1999 at about 00:15 hours when the Company
Commander and the other members of the force reached Munidih
Training Centre, Dhanbad, the respondent-Harendra Singh was
found present. This action of constable - Harendra Singh, as per the
CISF, reflects dereliction of duty, negligence, indiscipline and
willful disobedience of the order of his superiors. Since the
department felt that the action of the respondent amounts to
dereliction of duty, negligence, indiscipline and willful disobedience
of the order of his superiors, a memorandum of charge along with
imputation was issued to the respondent on 09.11.1999 as contained
in Memo No. V-15012/CISF/CO-6/BCCL/ADM/34/98-2533. The
charge against the respondent was that he in spite of his deployment
in the Strong Room at Shatabdi Bhawan, Patna during Lok Sabha
Election 1999 on 07.10.1999 from 17:00 hours to 21:00 hours,
along with Rifle and ammunitions, left his place of duty without
informing his superior authority. On 09.10.1999 he was found
3 L.P.A. No.267 of 2013
present at the Training Centre at Dhanbad. The charge against the
respondent is of dereliction of duty, negligence, indiscipline and
willful disobedience of the order of his superiors. Along with
charge-sheet, the details of the documents and names of witnesses to
prove the charge were furnished. Opportunity was given to the
respondent and he submitted his written statement in defence,
wherein he denied the charges. As the charges leveled against the
respondent was denied by him, the Disciplinary Authority intended
to conduct a regular enquiry, thus an Enquiry Officer was appointed.
During enquiry, the respondent was given full opportunity
to defend himself and thereafter the enquiry report dated 13.6.2000
was submitted by the Enquiry Officer. The Enquiry Officer found
the charges leveled against the respondent to be proved. The
Enquiry Report was furnished to the respondent and he was asked to
submit his representation against the findings of the Enquiry Officer.
The respondent represented and submitted that since he was unwell,
he left the place of duty by informing the Guard Commander.
The Disciplinary Authority thereafter, considering the
entire records of the case, including the Enquiry Report and the
representation submitted by the respondent, vide order dated
24/25.9.2000awarded the penalty of lowering down his scale to the lowest scale of Rs.3,050/- for a period of five years and it has also been ordered that he would not get any increment during the said period and the period of suspension between 8.10.1999 to 04.01.2000 shall not be counted on duty and he would get only the 4 L.P.A. No.267 of 2013 subsistence allowance for the period, he was kept under suspension. Aggrieved by the said order of punishment, the respondent preferred a Departmental Appeal before the Deputy Inspector General, CISF Unit, BCCL, Dhanbad. The said Departmental Appeal was also dismissed on 08.01.2001 vide order No. V- 11014/Adm.III/Appeal-34/2001-41.
The respondent then preferred a revision before the Inspector General/ES, but, the said revision was also dismissed on 25th July, 2001 vide order No. V-11015/ES/LC/Rev.30/2001/2751. Aggrieved and dissatisfied by the orders of dismissal by the Appellate authority and the Revisional authority, the respondent preferred a petition under Article 226 of the Constitution of India before the learned Single Judge of this Court. The said petition was numbered as W.P. (S) No.864 of 2002. The learned Single Judge after hearing the counsel for respondent and the counsel for the CISF, allowed the writ petition by setting aside the orders by which, the respondent was punished.
The Central Industrial Security Force, being aggrieved by the said judgment dated 08.03.2013 passed in W.P. (S) No. 864 of 2002, has preferred this Letters Patent Appeal under Clause 10 of the Letters Patent.
(3) In this Letters Patent Appeal vide order dated 28.02.2014, notices were directed to be served upon the respondent by direct service. Pursuant to the said direction, Sr. Commandant, CISF Unit HEC, Ranchi filed an affidavit in proof of service of notice upon the respondent. 5 L.P.A. No.267 of 2013 Acknowledgement, along with said affidavit, suggests that the respondent personally received the copy of the Letters Patent Appeal along with the Limitation Petition on 06.03.2014 in presence of a witness Sri A.K. Sahoo, Inspector (M), CISF No. 844680046.
(4) After condoning the delay when the matter was taken up, at the time of final disposal, none appeared on behalf of the respondent, in spite of valid service of notice. Thus, there being no alternative, we heard the argument of the appellant and proceeded to decide this case on the basis of the documents available on record.
(5) ARGUMENT ADVANCED ON BEHALF OF THE
APPELLANTS
The counsel for the appellants submits that the impugned
order dated 08.03.2013 passed in W.P. (S) No.864 of 2002 is absolutely bad in law and cannot be sustained. He further submits that the Enquiry Officer in his report has given a finding that the respondent had left his place of duty without informing his superior authorities. He submits that it is an admitted case that the respondent was deployed at Shatabdi Bhawan, Strong Room, Patna during 1999 Parliamentary Election. He was supposed to be on duty from 17:00 hours to 21:00 hours on 07.10.1999, but, during the inspection he was found absent. It was found that the respondent left his Rifle and ammunitions and personal belongings in the Strong Room and fled from the place of duty. He further submits that it was found that without any information and without obtaining any permission from the competent authority, he had left the place of duty. The 6 L.P.A. No.267 of 2013 whereabouts of the respondent was checked in the camp, but, he was found absent from there thus he was marked absent without leave. The Company Commander on 09.10.1999 found the respondent at Munidih Training Centre at Dhanbad. He submits that these laches on the part of the respondent are serious in nature which cannot be condoned by any means. Thus, after proper departmental enquiry, a punishment of lowering down his scale of Rs. 3050/- for a period of five years was awarded. He also submits that the punishment is neither disproportionate nor harsh, rather it commensurates with the misconduct. Counsel for the appellants further submits that since there is no illegality or irregularity in the departmental proceeding, the learned Single Judge could not have interfered with the order of punishment. He submits that so far as the challenge to the order of punishment before the Writ Court is concerned, the jurisdiction of the Writ Court while exercising under Article 226 of the Constitution of India in these matters are limited in nature. It is submitted that the High Court in exercise of power under Articles 226 and 227 of the Constitution of India cannot sit as an appellate forum against the order of dismissal. He further submits that the High Court, in fact, can appraise the evidence, but, cannot come to an independent finding, like that of an appellate forum. The counsel for the appellants also submits that the ground of medical treatment as, stated by the respondent cannot be believed, on the ground that on the medical prescription the timing of medical treatment was mentioned between 19:00 hours to 22:00 hours, 7 L.P.A. No.267 of 2013 whereas, as per the respondent, his treatment started at 15:00 hours. He further submits that the medicinal prescription does not bear the registration number of the doctor and also signature of the patient has not been attested by the doctor. Therefore, there is serious doubt about the genuineness of the medical prescription and the same should not have been relied upon by the learned Single Judge while passing the order impugned. He lastly submits that since there is no illegality and irregularity in the entire departmental proceeding and since the punishment is absolutely proportionate to the misconduct, which stood proved, the learned Single Judge should not have interfered and allowed the writ petition filed by the respondent, by setting aside the order of punishment. Thus, he prays for allowing this appeal.
(6) DEFENCE OF THE RESPONDENT.
Since none appears, in spite of service of notice upon the respondent, his case can only be gathered from the impugned order and the materials available on record.
The respondent claims that he fell sick while he was on duty in the Strong Room on 07.10.1999 sometime in between 17:00 hours to 21:00 hours and, thus, he went to Doctor for treatment. His defence is that he has taken permission from HC/GD Shri K.D. Tiwari, thus he was not present. He further pleaded that the Guard Commander had informed the ASI/Exe R.S. Singh about his illness, so he could not have been held guilty of any of the charges. His further defence is that Senior Officer did not visit the hospital and 8 L.P.A. No.267 of 2013 no search was made either in the hospital or in the Police Station. He also contended that marking him absent without leave (AWL) is also illegal and the said marking was done by Shri A.K. Singh, Inspector and Shri R.S. Singh, ASI intentionally to avoid their responsibilities. He also pleaded before the learned Single Judge that he has been harassed by the authorities.
(7) REASONS
(i) After hearing the appellants and going through the record, we find that the respondent is a constable in CISF and he was deployed at Shatabdi Bhawan, Strong Room, Patna during 1999 Parliamentary Election on 07.10.1999 from 17:00 hours to 21:00 hours with one Rifle and 50 rounds ammunitions. We also find that during the inspection, the respondent was found absent from his place of duty. He left his Rifle and ammunitions as well as his personal belongings with HC(GD), K.D. Tiwary and left the place of duty without any information and without obtaining any permission from the competent authority. We further find that since he had left the place of duty without information and did not join, he was marked absent without leave. We also find that on 09.10.1999, he was found at Munidih Training Centre, Dhanbad. As the action of the respondent amounts to misconduct, a departmental proceeding was initiated and the respondent was charge-sheeted. The chargesheet provides the details of the charges leveled against him. Since the reply of the respondent was not accepted, an Enquiry Officer was appointed 9 L.P.A. No.267 of 2013 to enquire the charges leveled against him. After proper and fair enquiry, the respondent was punished on 24/25.09.2000, by which, his pay scale was reduced to the lowest scale of Rs.3,050/- for a period of five years with cumulative effect.
(ii) The defence of the respondent that he fell ill and he was under
treatment, was not accepted either by the Disciplinary Authority, Appellate Authority or by the Revisional Authority. All the authorities disbelieved the defence put forth by the respondent.
(iii) We have gone through the punishment order, the appellate order and the revisional order and find that the orders are detailed and speaking orders which dealt with each of the contentions raised by the respondent and the grounds for discarding the defence of the respondent. Thus, these orders cannot be said to be unreasoned and perverse orders. We have also gone through the order dated 08.03.2013 passed in WP(S) No. 864 of 2002, in which, the learned Single Judge has held that the medical prescription of the respondent should not have been ignored and disbelieved and thus concluded that the impugned orders are not sustainable in the eyes of law and are liable to be quashed. The Hon'ble Single Judge also held that the order of the authority, by which, it was held that the respondent is not entitled to any amount save and except subsistence allowance, is also bad.
(iv) We find that the learned Single Judge has ventured to re-
appreciate the evidence and interfered with the conclusions arrived at in the departmental proceedings. Learned Single Judge 10 L.P.A. No.267 of 2013 held that there is no adequate evidence and has allowed the writ petition in favour of the respondent. The writ application filed by the writ petitioner/respondent under Article 226 of the Constitution of India challenging the impugned order of punishment and the consequent order is, in fact, in the nature of judicial review and is not an appeal. It is well settled that in a judicial review under Article 226 of the Constitution of India, the Court cannot sit in appeal. The Court should not be concerned with the decision, but, the decision making process. It is also well settled that the Court does not substitute its own view after reappraising the entire evidence. Judicial review does not allow the Court to examine the evidence, with a view to form its own opinion. The scope of judicial review is very much limited. Interference in the order can be done, if there is a violation of principle of natural justice or if there is violation of any statutory regulations or to correct the error of law and procedure. The jurisdiction is confined to correction of error of law and procedure and not to re-appreciate the evidence as an appellate Court. Articles 226 and 227 of the Constitution of India do not provide for an appellate jurisdiction. The Hon'ble Supreme Court in the case of Union of India and Others Vs. P. Gunasekaran reported in (2015) 2 SCC 610, has held that in a disciplinary proceedings, the High Court is not and cannot act as a court of first appeal. The High Court can only see whether;.
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure 11 L.P.A. No.267 of 2013 prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous consideration;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the findings; the finding of the fact is based on no evidence.
(Emphasis supplied)
(v) Further in paragraph 13 of the said judgment, the restriction imposed upon the High Court while dealing with such type of case has been enumerated. Paragraph 13 of the said judgment reads as under:-
"13. Under Articles 226/227 of the Constitution of India, the High Court shall not;
(i) reappreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based;
Correct the error of fact however grave it may appear to be; (vii Go into the proportionality of punishment unless it shocks it conscience."
(Emphasis supplied) 12 L.P.A. No.267 of 2013
(vi) In the case of State of A.P. Vs. Chitra Venkata Rao reported in (1975)2SCC 557, in para 23, the Hon'ble Supreme Court has held as under;
"23. The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The court exercises it not as an appellate court. The findings of fact reached by an inferior court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiently of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal.
(Emphasis supplied)
(vii) It has been held by the Hon'ble Supreme Court in the case of High Court of Judicature at Bombay through its Registrar Vs. Shashikant S. Patil and Another reported in (2000) 1 SCC 416 that if there is some legal evidence, it is enough to uphold 13 L.P.A. No.267 of 2013 the order. Adequacy or reliability of such evidence, is not a matter for canvassing before the Hon'ble High Court in Article 226 of the Constitution of India.
(viii) In the instant case, no case has been made out by the respondent-writ petitioner that the departmental proceeding was conducted in an illegal or irregular manner and there was any error of law and procedure. The respondent-writ petitioner has miserably failed to bring his case within 9 points as laid down by the Hon'ble Supreme Court in the case of P. Gunasekaran (Supra) which gives power to the High Court under Articles 226 and 227 of the Constitution of India to interfere with the order passed in a disciplinary proceedings. In the instant case, the learned Single Judge has reappraised the evidence and interfered with the conclusion arrived at during the disciplinary proceeding and has gone into the adequacy/reliability of the evidence, which could not have been done. Therefore, the order impugned passed in W.P. (S) No. 864 of 2002 cannot be sustained.
(ix) So far as the finding that no notice was given to the respondent-
writ petitioner before passing the punishment order by which it has been held that the respondent is not entitled to get any amount save and except the subsistence allowance is concerned, we find that the respondent-writ petitioner has failed to point out and establish that prejudice has been caused by non-furnishing of the notice. The Hon'ble Supreme Court in the case of Syndicate Bank Vs. Venkatesh Gururao Kurati reported in (2006) 3 SCC 14 L.P.A. No.267 of 2013 150 at para 18 has held as under;
"18. ............ to sustain the allegation of violation of principles of natural justice, one must establish that prejudice has been caused to him for non-observance of principles of natural justice."
(x) We hold that no prejudice is caused to the respondent in this case for non issuance of notice. Further no notice needs to be issued in the instant case.
(xi) The onus is on the writ petitioner to show what prejudice has been caused to him, which he failed to substantiate. Thus, the findings of the learned Single Judge that the order of punishment should be set aside only on the ground of non-adherence of the principle of natural justice, is also incorrect and also cannot be sustained.
(xii) The punishment awarded to the respondent also cannot be said to be disproportionate. The respondent is a member of a disciplined force and it is expected from him to maintain discipline. His duty is to carry out and follow the direction and order of his superiors either written or oral. It came during the departmental enquiry that the respondent had left his place of duty without obtaining any permission from his superior authority. This fact has not been denied by the respondent, but, he has not brought any material on record to suggest that at any point of time, he had obtained any such permission. The defence of the respondent is that he was ill and had left the place of duty to take medical assistance. This defence was also disbelieved on 15 L.P.A. No.267 of 2013 the ground that he should have approached his immediate superior authority before leaving and by not doing so and leaving the place of posting as per his own wish, also creates a doubt about the defence version of illness.
(8) As a cumulative effect of the aforesaid facts, reasons and judicial pronouncements, the judgment and order delivered by the learned Single Judge in W.P. (S) No. 864 of 2002 dated 8th March, 2013 is, hereby, quashed and set aside and we, hereby, uphold the order passed by the disciplinary authority dated 25th September, 2000 (Annexure-3) as well as the order passed by the appellate authority dated 08th January, 2001 (Annexure-4) and the order passed by the revisional authority dated 25th July, 2001(Annexure 5).
(9) This Letters Patent appeal is allowed and disposed of. (10) In view of the final order passed in the Letters Patent Appeal, I.A. No. 5904 of 2013 stands disposed of.
(D. N. PATEL, J) (ANANDA SEN , J) Manoj-Anu/-