Central Administrative Tribunal - Delhi
Sh. Bishan Singh Chauhan vs Govt. Of Nct Of Delhi on 2 February, 2009
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.2689/2006
New Delhi this the 2nd day of February, 2009
Honble Mr. Justice V.K. Bali, Chairman
Honble Dr. Ramesh Chandra Panda, Member (A)
Sh. Bishan Singh Chauhan,
Asstt . Superintendent,
Central Jail,
Tihar, New Delhi .........Applicant
(By advocate : Shri M.K. Bhardwaj)
-Versus-
Govt. of NCT of Delhi
Through:
Principal Secretary,
Home Department,
Govt. of NCT of Delhi,
Delhi Sachivalaya,
I.P. Estate,
New Delhi
Director General of Prisons,
Central Jail,
Tihar, New Delhi ...Respondents
(By advocate: Shri Vijay Pandita)
: O R D E R :
Honble Dr. Ramesh Chandra Panda, Member (A):
Shri B.S. Chauhan, working as the Assistant Superintendent (A.S. in short) of Central Jail at Tihar, the Applicant herein, has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 with the following prayers:
To quash and set aside the impugned order dated 12.01.2006 passed by the disciplinary authority;
To quash and set aside the appellate authority order dated 27.10.2006 and direct the respondents to restore the increment of the Applicant with all consequential benefits.
To quash and set aside the charge memo and inquiry report.
Any further order/relief this Honble Tribunal deem fit and proper in the facts and circumstances narrated herein above may also be passed in favour of Applicant and against the Respondent.
2. The facts of the case are briefly recapitulated here. A prisoner Laiq Ahmed admitted in Central Jail No.4 on 7.6.2001, being a drug addict was lodged in DAC Ward i.e. hospital ward (Ward No.12) of the Jail. It is stated that on 8.6.2001 at about 4 pm he escaped from the Jail. The Applicant was in charge of the Ward No.12 and failed to notice the escape of the said prisoner. It is alleged that the Applicant delayed the transmission of the information to his seniors. The Government of NCT of Delhi directed a Magisterial Enquiry on the escape of the prisoner and on receipt of the Report, the Applicant along with others, was charge-sheeted. The Charge Memo dated 14.10.2003 (Annexure-A1) against the applicant has only one charge for a major penalty. The charge was that the Applicant failed to present at the time of unlocking the prisoners, and miserably failed to come to know of the escape of a prisoner from the jail during his inspection. The Applicant in his representation dated 10.11.2003 denied the charge. A departmental joint enquiry against the Applicant and 3 others was conducted by Shri V.K. Agnihotri SCJ who held the charge against the Applicant as proved. The Applicant was supplied copy of the Inquiry Officer (IO)s report who submitted his reply on 21.05.2005. The Respondent No.2, the Director General of Prisons, being the competent disciplinary authority, went through the I. Os Report, reply of the Applicant and ordered the penalty of permanent forfeiture of his 3 increments which will have effect on his pensionary benefits. Being aggrieved by the said order, he preferred an appeal on 24.02.2006 which was considered by the Respondent-1, the Applicant was heard in person on 23.08.2006 and the Appellate Authority came to the conclusion that Nothing new has been mentioned by the appellant. In the circumstances, there is no substance in the appeal, which is accordingly dismissed. The Applicant has, therefore, challenged the orders of both Disciplinary and Appellate Authorities and also the Charge Memo and the Report of the Inquiry Officer in the present O.A.
3. In support of the Applicant, Shri M.K. Bhardwaj contended that (i) this disciplinary case against the Applicant was a case of no evidence since the charge is not supported by any documentary or oral and other evidences and the Inquiry officer reached conclusion without properly analysing the evidence received in the inquiry which is violative of Rule 14(23); (ii) he was not permitted to have a defence Assistant and to produce defence witnesses in his support; (iii) ADMs Report which is the result of the Magisterial Enquiry ordered by the Government on the escape of the prisoner did not indict the Applicant at all; (iv) Applicants duties are specific which he discharged meticulously; (v) since he had specific duty hours he would not be responsible for things happening when he was not available due to lunch break; and (vi) the retired officers cannot be appointed as Inquiry Officer. In support of the contention that this is a case with no evidences, the orders of punishment is liable to be quashed, the Learned counsel for the Applicant relied on the judgment of Honble Supreme Court of India in the Civil Appeal No.8267 of 2004 between M.V.Bijlani Versus Union of India and Others.
4. On the contrary, Shri Vijay Pandita, the learned Counsel for the Respondents, vehemently opposed the contentions of Shri Bhardwaj. He highlighted that there were ingredients of negligence on the part of the Applicant as had been brought out in the Inquiry Report. The Inquiry Officer has identified evidences in his report against the Applicant. He submitted that as per the extant Rules the retired Government employees could be appointed as Inquiry Officer in a departmental proceeding. Shri Vijay Pandita submitted a copy of the Central Vigilance Commission Office Order No.70/11/04 dated 18.11.2004 circulated to all Chief Vigilance Officers directing to carry out suitable amendment to the provision for appointment of retired officers as Inquiring Authorities. This order was issued consequent to the Judgment of Honble Supreme Court of India in the case of Ravi Malik Versus National Film Development Corporation Ltd. (Civil Appeal No.4481 of 2004) delivered on 23.07.2004. Shri Panditas contention is that the retired officers can be appointed as the Inquiry Officer.
5. The contentions of the learned counsel for the Respondent were that (i) this Tribunal should not re-appreciate the evidence to come to its own conclusion; (ii) the Tribunal should not interfere with the punishment; and (iii) the disciplinary proceedings should not be treated as criminal proceedings and the standard of proof required would not be proof beyond reasonable doubt but the probability of preponderance would suffice in case of the department proceedings. He relied on the decisions of Honble Supreme Court in Union of India Versus Sardar Bahadur, Union of India Versus A. Nagamalleshwara Rao, State of Tamil Nadu Versus S. Subramanyan, State of Tamil Nadu Versus K.V. Perumal, State Bank of India Versus S.K.Endow and B.C. Chaturvedi Versus Union of India and Union of India Versus Parama Nanda.
6. Having heard the rival contentions, at the initial stage, we intend to examine the legal issue raised by both the Counsels for and against the power of the Tribunal to interfere in the disciplinary proceedings and if so at what stage and on what grounds. We very closely went through the following 19 judgments of Honourable Supreme Court of India and drew up a list of ratios on the issues of the powers of the Court / Tribunal in the matters relating to the Inquiry, and orders of the Disciplinary and Appellate Authorities which will guide us in determining this OA. :-
Union of India Versus Sardar Bahadur [1972 (2) SCR-218] Union of India Versus Parama Nanda [AIR (SC) 1989-1185]
3. State of Tamil Nadu versus T. V. Venugopalan, [(1994) 6 SCC 302 ]
4. Union of India versus Upendra Singh, (1994) 3 SCC 357
5. State Bank of India Versus S.K.Endow [1994 (2) SCC 537
6. B.C. Chaturvedi Versus Union of India [1995 (6) SCC 749]
7. Govt. of Tamil Nadu versus A. Rajapandian, (1995) 1 SCC 216 .
8. State of Tamil Nadu Versus S. Subramanyan [1996 (7) SCC 509]
9. State of Tamil Nadu Versus K.V. Perumal [1996 (5) SCC 474]
10. Union of India Versus A. Nagamalleshwara Rao [AIR 1998 SC-111]
11. Om Kumar versus Union of India (2001) 2 SCC 386
12. Damoh Panna Sagar Rural Regional Bank Versus Munna Lal Jain[2004 STPL(LE) 33967 SC]
13. M.V. Bijlani Vs. Union of India[2006 SCC - 5-88] decided on5.4.2006
14. State of Rajasthan Versus. Mohd Ayub Naz [2006 SCC-1-589SC]
15. Govt. of A.P. Versus Nasrullah Khan[2006 STPL(LE) 36733 SC]
16. State of U.P. versus Sheo Shanker Lal Srivastava ((2006) 3 SCC 276 )
17. Govt. of India Versus George Philip [2007 STPL(LE) 37755 SC]
18. Union of India Versus S.S. Ahluwalia[2007 SCC (7) 257]
19. Moni Shankar Vs. Union of India[2008 SCC (3) 484
7. We have noted that the common thread running through more or less in all these decision of the Honourable Apex Court is that generally the Tribunal should not interfere with the decision of the executive in the matters of disciplinary proceedings unless it is found to be suffering from certain procedural, legal, statutory improprieties. On certain grounds only the Tribunal can closely scrutinize the relevance and irrelevance of facts; available or absence of evidence; proportionality or otherwise of the punishment; compliance or otherwise of the audi alteram partem; compliance of or otherwise of the Wednesbury principle and the like. Some of the guiding principles in the subject/issues are as follows :-
* The Tribunal cannot interfere with the findings of the Inquiry Officer which is based on evidence and substitute its own independent findings.
* When the findings of the disciplinary authority or the appellate authority are based on some evidence, the Tribunal cannot re appreciate the evidence and substitute its own findings.
* Judicial review by this Tribunal is not an appeal over a decision but a review of the manner in which decision is made.
* When an inquiry is conducted on the charge(s) of misconduct against a public servant, where the authority held the proceedings against the delinquent officer, the Tribunal is empowered/concerned to determine
-Whether the inquiry was conducted by the competent officer ? or
-Whether rules of natural justice have been complied with ? or
-Whether the findings/conclusions are based on some evidence or no evidence to reach a finding/conclusion ? or
-Whether the mode of inquiry is in violation of statutory rules? or
-Whether the findings are arbitrary or utterly perverse ?
* Adequacy of evidence or reliability of evidence applies to the disciplinary proceedings.
* When the Inquiry Officer finds and accepts the evidence, his conclusion normally is guided by such evidence and as such the disciplinary authority is entitled to hold the delinquent officer as the guilty of the charge.
* The disciplinary authority exercises his quasi judicial power to appreciate the evidence and finding is based on the same.
* In case of an appeal, the Appellate Authority has co-extensive power to re appreciate the evidence and the nature of punishment.
* The Tribunal can interfere with the decision of the Disciplinary/Appellate/Reversionary Authority, if such a decision is illogical or suffers from procedural impropriety or deficiency in the decision making process or was shocking to the conscience of the Tribunal in the sense that such decision was in defiance of logic or moral standards.
* The Tribunal exercising the powers of Judicial review is entitled to consider whether while inferring commission of misconduct on the part of the delinquent officer, relevant piece of evidence has been considered and irrelevant facts have been excluded there from. Inference on facts must be based on evidence which meet the requirements of legal principles.
* The Tribunal is entitled to arrive at its own conclusion on the premise that evidence adduced in the enquiry meets the requirement of burden of proof, namely preponderance of probability.
8. We note the foregoing legal position that this Tribunal is not an Appellate forum to examine bit by bit the evidence gathered in the inquiry but we have the power to see whether there is even the minimum evidence to invoke the doctrine of probability of preponderance. If the case has no evidence against the Applicant we are legally duty bound to interfere. Such step cannot amount to the re appreciation of the evidence. We therefore, identify 2 issues for our initial consideration and determination and if the case passes the tests on these two counts, other aspects will finally be considered by us. The two issues are as follows:
i. Is this a case of no evidence?
ii. Is the order of the Appellate Authority a non-speaking and non-reasoned order?
9. We examine the 1st Issue -- Is this a case of no evidence? For arriving at a considered conclusion it is relevant for us to examine what charge was framed against the Applicant, IOs Report, and orders passed by the Disciplinary and Appellate Authorities. The Charge Memorandum dated 14-10-2003 reads as follows:-
That the said Sh. Bishan Singh Chauhan, A.S. while posted as A.S. in Jail No.4 in Ward No.11, 12 & 14 on 08.06.01 had failed to present at the time of unlocking the prisoner. He also failed miserably to come to know of the escape during his inspection of Ward No.12, which was under the charge at around 5 PM while majority of Jail staff were aware of the escape of prisoner Laiq Ahmed S/o Rafiq Ahmed at around 06.45 PM. This despite the fact, that the incident of missing prisoner was also announced through public address system.
The above act on the part of Sh. Bishan Singh Chauhan, A.S is highly objectionable and unbecoming of a Govt. servant which also lacks absolute integrity and devotion towards his duties, thus Sh Bishan Singh Chauhan, A.S has violated rule 3 of CCS (Conduct) Rules 1964.
10. The Inquiry Officer in his report has analysed the Applicants case along with 3 other co-delinquents, referred to 6 sets of documents and examined 5 witnesses including the Applicant in respect of his statement dated 9.11.2001. The Applicant did not cross examine Shri B.S. Jariwal, Deputy Superintendent of the Jail but he cross examined Shri Krishna Yadav, Head Warder 296. The Defence Assistant of Krishna Yadav cross examined the Applicant where the Applicant stated that he verified the Ward No.12 at 05.05 PM and remained there for = hour and visited both the barracks of the hospital. He also reported that he did not know the exact number of Patient Prisoners and vacant beds, and all the inmates were not in their beds. He did not see Krishna Yadav during that visit and checked from Prithvi Singh, the Warder about the Patient Prisioners. Prithvi Singh, the Warder did not inform the Applicant about the escape of a Prisoner. The Applicant in his defence before the Inquiry Officer submitted that the witnesses including senior and knowledgeable Officers did not have anything in support of the charge against him; the relevant Chapters of ADMs Report lacked facts about the different positions in the Prison administration and function; his requests dated 8.10.2004, 18.11.2004 and 10.12.2004 seeking to examine witnesses and peruse documentary evidence in his defence were denied. The Inquiry Officer in his analysis of the evidence received during the enquiry examined the points which read as follows:
Analysis of state witnesses with regards to their examination-in-chief viz-a-viz evidence adduced during their cross examination is as under:- ..4. Sh. B.S.Chauhan: Sh. Chauhan in his examination in chief had stated that neither Head Warder nor Warder Shri Prithvi Singh informed him of the missing person, when he visited the ward during the period 5.00 PM to 5.30 PM. During cross examination he admitted that he did not come across the Head Warder during his stay in the Ward and Warder Prithvi Singh did not reveal anything to him about missing Prisoner. It is pertinent to mention here that at that point he had gone to Chakkar and getting the announcement made on OPA system by the Chakkar staff.
11. The Inquiry Officer has given a narration of the duties of the AS Chakkar I/C and AS I/C of Wards. Inquiry Officer stated in his Report that opportunity was given to the Charged Official(s) to do the cross examination but they did not avail the same except 2 charged officials. Inquiry Officer has come to the following conclusion in his report dated 13.5.2005:-
In view of the inquiry proceedings conducted by the undersigned and contest taken by all the Charged Officials during the course of inquiry proceedings, all the reasons taken by all the Charged Officials in their defence and as well as submitted by them in their Brief they have failed to shaken the credibility of listed witnesses/ exhibited documents and even all these Charged Officials have tried to save their skin from their own responsibilities.
Hence, it is crystal clear that Charges levelled vide Article-I of Statement of article of charges and Annexure-II of Statement or imputation of misconduct and misbehaviour in support of article of charges framed against (1) B.S. Chauhan, A.S., (2) Sh. Gheesa Ram, Head Warder, (3) Sh. Krishna Yadav, Warder-296 and (4) Sh. Prithvi Singh, Warder-825 (explained on pre-pages) are established by the Presenting Officer and thus during the course of inquiry, the same are PROVED beyond any doubt against them.
12. The Director General (Prisons) Delhi, being the Competent Disciplinary Authority, considered the Inquiry Officers findings and defence of the Applicant; and gave the Applicant an opportunity for personal hearing, analyzed the points raised by the Applicant and came to the conclusion in his order dated 12.1.2006 (Annexure-A2) that the Applicant has committed the misconduct for which he imposed the punishment of permanent forfeiture of 3 increments with impact on his pension. The concluding part of the order is extracted below:-
Under the circumstances, on the basis of evidence adduced from witnesses and documents on record, I am of the convinced view that the Charged Official, Shri Bishan Singh Chauhan, Asstt. Supdt. failed in his duties assigned by the Delhi Jail Manual as Asstt. Supdt. In-charge of the Ward and was negligent in his performance. This attitude of his resulted in escape of prisoner, Laiq Ahmed S/o Rafiq Ahmed an incident which caused lot of embarrassment to the Jail Administration. He was Asstt. Supdt. In-charge of the Ward and the Administration had reposed faith in his qualities of an Officer and entrusted supervision of certain wards under his command. For purposes of assistance, he was given number of Warders and Head Warders to assist him in this task. But Shri Bishan Singh Chauhan, A.S. not only failed in his supervision of ensuring compliance of duties from his subordinate but also committed misconduct of not being alert to come to know of such an incident in time so as to organize preventive and detective steps to nab the culprit. For this mis-conduct, I order for permanent forfeiture of three increments which will have effect on his pensionary benefits also.
Therefore the undersigned being the competent Disciplinary Authority empowered under the rule hereby impose a penalty of permanent forfeiture of his three increments and which will have effect on his pensionary benefits upon Shri B.S. Chauhan A.S.
13. Being aggrieved by the order of the Disciplinary Authority, the Applicant filed his appeal before the Appellate Authority. We now examine the order passed by the Appellate Authority, which was communicated to the Applicant vide letter dated 27.10.2006 (Annexure-A3). The Applicant was granted a personal hearing on 23.8.2008 when he submitted 6 grounds in support of his defence. Without any discussion on the points raised in the appeal, the Appellate Authority passed a non-speaking and non-reasoned order. The grounds raised by the Applicant and the decision taken thereon by the Appellate Authority are extracted here:
During the course of personal hearing granted to the charged officials on 23.08.2006, he has submitted the following:-
No formal orders for common proceedings were issued by the Disciplinary Authority as per requirement of sub-rule (1) and sub-rule (2) of Rule 18 if CCS (CCA) Rules, 1965.
Permission to engage the chosen Defence Asstt. denied without assigning any reason.
Head-warder is not required to be present while locking or unlocking of the prisoners.
There is no provision for formal locking or unlocking of prisoners in the mid day.
At the time of incidence the jail was in the charge of Asstt. Supdt. (Chakkar) and not the appellant.
Merely calling the name of the prisoner does not mean that the prisoner is missing or has escaped from the jail.
The appellant was heard in person on 23.8.2006. I have carefully considered the order of the Director General (Prisons)/Disciplinary Authority and also the arguments advanced by him during the personal hearing before me. Nothing new has been mentioned by the appellant. In the circumstances, there is no substance in the appeal, which is accordingly, dismissed. The charged official and the Director General (Prisons)/Disciplinary Authority may be informed accordingly.
14. We were informed during the hearing that the vertical and hierarchical control system in the Central Jail inter alia with regard to the handling of the prisoners in the wards is as narrated below :-
Superintendent is in overall charge of the Central Jail ?? Deputy Superintendent works under the control of the Superintendent and as per 82(f) and 82 ( r ) of Delhi Prisons (IMD officers) Rule 1988, Head Warders to open the wards, count, unlock and lock the prisoners in his presence ??. Assistant Superintendent supervises the work of Head Warder who directly control's Lock in and Lock out of prisoners done by the Warder.?? Head Warder and Warder have the primary duty to open, unlock, and lock in the prisoners in the wards concerned.
15. The following are undisputed facts in the case:-
* The prisoner Laiq Ahmed escaped from the Ward No.12 of the prison on 8.6.2001.
* Ward No.12 is a Jail hospital and Laiq Ahmed was admitted in the hospital.
* The keys of the Ward No.12 are kept with Warder.
* Shri Prithvi Singh Warder 825 was in charge of the Ward No.12 on 8.6.2001.
* Primary responsibility of the Prisoners in the Ward vests with the Warder under the control of Head Warder.
* The Assistant Superintendent has the supervisory function over the Warder and Head Warder.
* Each Assistant Superintendent is in the supervisory charge of more than one Ward.
* The Applicant was in charge of 3 Wards on 8.6.2001 (Ward No.11, 12 and 14).
16. To sum up, the charge against the Applicant consisted of two components, namely (i) He had failed to present at the time of unlocking the prisoner. (ii)He also failed miserably to come to know of the escape during his inspection of Ward No.12, at around 5 PM while majority of Jail staff were aware of the escape of prisoner and came to know the same at around 06.45 PM, despite the incident of missing prisoner was also announced through public address system.
17. In respect of the 1st component of the charge against the Applicant that he had failed to present at the time of unlocking the prisoner, the Inquiry Officer did not analyse the statement given in the cross examination by the Deputy Superintendent, Shri B.S.Jarial. At page 25 of the Inquiry Officers Report, it states that it is the duty of the Warder as well as Head Warder to properly check the movement of the prisoners of their respective wards for the period, he is on duty. It is pertinent that Shri Prithvi Singh Warder who was on duty has opened the Ward and sent four prisoners along with a convict officer (sewadar) for bringing meal from the Lunger ward for the inmates of the Ward No. 12. But only three prisoners reported back in the ward and the sewadar informed the warder that one of the prisoners sent along with him has mixed up with other prisoners and was not traceable. This is critical and vital information, if analysed the IO could have come to know the time of the prisoners escape and whether the Applicant was available at that time and whether the Warder would have informed him. The IO failed to do so. On the contrary, he came to the conclusion on the basis of his preconceived and predetermined presumption. On the examination of the duties of the Applicant, the normal practice in the Jail is that the Warder locks and unlocks the Ward concerned. He is primarily responsible and responsibility cannot be transferred to the Assistant Superintendent who is 2nd level supervisor, the 1st level being the Head Warder. We, therefore, come to the firm and considered conclusion that the Inquiry Officer did not have any evidence on the 1st component of the charge.
18. With regard to the 2nd component of the charge against the Applicant that he also failed miserably to come to know of the escape during his inspection of Ward No.12, at around 5 PM while majority of Jail staff were aware of the escape of prisoner and came to know the same at around 06.45 PM, despite the incident of missing prisoner was also announced through public address system. It is interesting to note that Shri Prithvi Singh Warder -825 who was in charge of the Ward No-12 where from the prisoner escaped was charged and the Statement of imputation of misconduct and misbehaviour in support of the article of charge carried the imputation that He also failed to timely inform his superior officers present in the jail premises about the escape before the same was discovered. His superiors are (i) Head Warder ( Shri Krishna Yadav HW- 296), (ii) Assistant Superintendent (Shri B. S. Chauhan, the Applicant herein) and (iii) the Deputy Superintendent (Shri V. P. Garg). The Applicant submitted that he was not informed by Shri Prithvi Singh Warder -825 about the escape during his visit to the Ward-12 between 5.00PM to 5.30PM. Shri V. P. Garg, Deputy Superintendent stated that he came to know the escape at about 7.30PM, though he was present in the prison. The Head Warder ( Shri Krishna Yadav HW- 296) was not present. We find these are relevant information and facts which were not considered by the Inquiry Officer, Disciplinary and Appellate Authorities. Therefore, we also come to the considered view that there is no evidence in respect of the component -2 of the charge.
19. The success of the Applicants case depends on the contentions that the disciplinary case was a case of no-evidence. While examining this issue we kept in the background of our mind the settled legal position which has been elaborated that this Tribunal should not undertake re-appreciation of evidence. But in the matter/question of no-evidence, we have to see the details to the extent of even search if there is any evidence against the Applicant. If we find, the same will go in support of the Respondents plea for probability of preponderance. There is a strong and marked difference as to the effect of evidence in civil and criminal proceedings. In the former a mere preponderance of probability, due regard being had to the burden of proof, is a sufficient basis of decision; but in the latter, especially when the offence charged, a much higher degree of assurance is required. In the present case, the burden of proof lies with the Inquiry Officer and the Disciplinary Authority to prove the allegations/charges framed against the Applicant. The I.Os report does not bring out any oral/statement and evidence of witnesses or documentary evidence about the time the Applicant came to know of the escape of the prisoner. The Applicant, by his own admission, states that he came to know the escape at 6.45 PM, though he visited the Ward-12 at 5.05 PM but the Warder did not inform him of the escape. The counsel for the Respondents argues that there was announcement of the escape in the Public Address System. The argument on behalf of the Respondents was the presumption that when some of the Jail staff was aware of the escape, the Applicant being the senior official would have known the escape. It is the responsibility of the Respondents to establish and prove the presumption when the Applicant has rebutted the same. The onus to prove the circumstances for the presumption lies on the Respondents. We rely on the dicta of the Honble Supreme Court in the case between State of Karnataka Versus M.V. Manjunathegowda [(2003) 2 SCC 188]. The Respondents, in our considered opinion, failed not only to prove the presumption but also the timing for the escape of the Prisoner and Applicants knowledge of the same.
20. What has been looked into by the IO on the sequential events to prove the charge against the Applicant? The moot question is What time the Prisoner escaped? When we put this question to the learned counsel for the Respondents, he did not have any definite answer. We searched from the records to find as to what time the Prisoner escaped. We note from the Applicants statement that the Prisoner escaped between 4.00PM 4.20 PM. He came to know at about 6.45PM and the Deputy Superintendent came to know at about 7.30PM. The IOs report reveals that Shri V. P. Garg the Deputy Superintendent was doing his duty in the Central Jail No.4. He was conducting an enquiry between 4.30pm to 6.30pm in the Deodhy and at 7.30pm he came to know from his house over phone to state that somebody from Chakkar of CJ 4 was asking about him and he could thereafter come to know about the missing of the prisoner.
21. The definition of Proved connotes what degree of certainty must be arrived at before a fact can be said to be proved. In the present case, the IO has concluded that the charges against the Applicant are proved beyond any doubt, but, the IOs Report does not reveal the degree of certainty in that regard. We do not find any evidence adduced by the witnesses to show the Applicant was aware of the escape of the prisoners before 6.45pm and he avoided to report the escape to his seniors. When the Warder in charge of the Ward No.12 fails to tell in his statement about the escape of the prisoner to the Applicant, when he visited Ward No.12, the said evidence does not come in support of the Respondents stand. The standard of proof in the disciplinary cases as per the settled law is not required to be of a high standard as in case of criminal cases. The proof beyond doubt is the standard for the criminal proceedings for imposing any punishment, whereas, in the department/civil proceedings such standard is not necessary for imposing any punishment. Proof of the fact depends upon the degree of probability of its having existed [ T. Shankar Prasad Versus State of AP (2004 (3) SCC 753)]. Looking into the nature of charges and the IOs Report we are inclined to agree with the view of the Applicant that this is a case of no evidence.
22. Undisputedly, in the Charge sheet there were six number of documents by which the article of charge framed was proposed to be sustained. But, none of those documents have either been discussed or examined to prove the charge. Five witnesses were examined and three of them have been also charged and are co-delinquents in the disciplinary case. It appears that the Inquiry Officer proceeded with pre-determined mind to prove the charge and acted as a prosecutor rather than impartial and unbiased quasi judicial authority to find evidence in favour of the charge. Timing of escape of the prisoner, the duty and lunch time of the applicant, and the timing of the announcement of the prisoners escape on the public address system, are relevant facts for the disciplinary case. The Inquiry Officer has not considered them. He failed to bring in relevant matters in the case. When the applicant submitted that (i) the prisoner escaped during 4.00 PM to 4.20 PM when he was away due to his lunch break; (ii) the warder for Ward No. 12 did not inform him of the prisoners escape during his visit to the Ward during 5.00 PM to 5.30 PM; and (iii) the applicant came to know of the escape only at 06.45 PM after which, he acted; the Inquiry Officer has not given any findings on these above aspects brought to Inquiry Officers notice by him. We also note that the Applicant was availing a late lunch break and was not in the prison when the prisoner was alleged to have escaped. We wonder, how he would be responsible for the charges levelled against him? Further, the Inquiry Officers Report considered by the Disciplinary Authority did not address all the relevant issues but came to the conclusion without proper application of mind and held the charge as proved. The next opportunity for the Applicant was with the Appellate Authority who considered his appeal, heard the applicant and even tabulated 6 points raised by the applicant and did not discuss those points and rejected them with a simple generic statement that Nothing new has been mentioned by the applicant. In the circumstances, there is no substance in the appeal, which is accordingly dismissed. The Appellate Authority in our considered view has failed to discharge his function as a quasi judicial authority by issuing a non-speaking and non-reasoned order.
23. Once the report of the Inquiry Officer shows that the findings recorded against the Applicant are not based on relevant facts and is without evidence, and as such, illogical, irrational and perverse, the punishment ordered by the Disciplinary Authority and consequently the order of the Appellate Authority, ab initio become void.
24. In view of the totality of the facts and circumstances of the case and settled legal position in the issues discussed above we come to the considered conclusion that the disciplinary action taken against the applicant is a case of no evidence and relevant evidence are not available in the Inquiry Officers Report and the decision has been taken by the Disciplinary authority on the basis of the said Report. Thus, in respect of the 1st issue as to whether this disciplinary case is a case of no evidence we come to the considered finding in the affirmative that it is a case of no evidence. The 2nd issue flagged by us for our determination is whether the order of the Appellate Authority suffers from the non-speaking and non-reasoned nature. We have discussed the same within and found the same to be true. We find that the Appellate Authority has not analysed the grounds adduced by the applicant in his appeal and as a result we conclude that the order passed by the Appellate Authority is a non-speaking and non reasoned order. In the result, the Applicant succeeds and we note that it will be a futile exercise to restart a de novo enquiry against the Applicant.
25. We, therefore, quash and set aside the Charge sheet, the Inquiry Officers Report, the order of the Disciplinary Authority dated 12.1.2006 and the order of the Appellate Authority dated 27.10.2006. The Applicant will be entitled to all consequential benefits. The Original Application is allowed with the above directions. There is no order on costs.
( Dr. Ramesh Chandra Panda ) (V. K. Bali) Member (A) Chairman /pj/