Madhya Pradesh High Court
Akhilesh Kumar Tiwari vs Union Of India on 12 June, 2023
Author: Chief Justice
Bench: Ravi Malimath, Vishal Mishra
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAVI MALIMATH,
CHIEF JUSTICE
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 12 th OF JUNE, 2023
WRIT APPEAL No. 487 of 2020
BETWEEN:-
AKHILESH KUMAR TIWARI S/O RAM PRASAD TIWARI,
AGED ABOUT 48 YEARS, OCCUPATION: REMOVED
CONSTABLE CISF R/O VILLAGE BARBAH POST SUKBAH
DISTRICT REWA (MADHYA PRADESH)
.....APPELLANT
(BY SHRI VIVEK SHUKLA - ADVOCATE)
AND
1. UNION OF INDIA THROUGH SECRETARY
DEPARTMENT OF HOME AFFAIRS NORTH
BLOCK, NEW DELHI
2. DIRECTOR GENERAL OF C.I.S.F. (MINISTRY OF
HOME AFFAIRS) BLOCK NO.13, CEC COMPLEX,
LODHI ROAD NEW DELHI
3. DEPUTY INSPECTOR GENERAL OF POLICE, CISF
FORCE N.E.2-41, KARYA ROAD, PARK CIRCUS
MAIDAN KOLKATA (WEST BENGAL)
4. COMMANDANT C.I.S.F. 12, RES, BN. FARAKHA
DISTRICT MURSIDABAD (WEST BENGAL)
.....RESPONDENTS
(BY SMT. KANAK GAHARWAR - ADVOCATE)
This appeal coming on for admission this day, the Court passed the
following:
ORDER
Signature Not Verified Signed by: SHALINI LANDGE Signing time: 6/19/2023 4:36:07 PM 2 For the reasons assigned, I.A. No.3639 of 2020 - an application for condonation of delay is allowed. Delay in filing the appeal is condoned.
Assailing the order dated 08.08.2019 passed by the learned Single Judge in dismissing the Writ Petition No.5793 of 2007, the writ petitioner is in appeal.
2. It is the case of the petitioner that he was working in CISF 12th Residential Battalion, Farakka with effect from 10.02.1997. While he was performing his duty as a Security Aid at the residence of Deputy Commandant of CISF on 19.11.1997, he went to the market for purchasing some eggs with the permission of the Deputy Commandant. The allegation made against the petitioner is that he was found arguing with the egg seller and when the police party tried to intervene and stopped the arguments, the petitioner abused the police party by using filthy language and misbehaved with them. He was taken to the resident of Commandant, CISF Unit, FBP, Farakka and thereafter, to the police station. A departmental enquiry was initiated against him and he was placed under suspension on 20.11.1997. A preliminary enquiry was also carried out against the petitioner in which he was prima facie found guilty of committing misconduct. Charge memorandum dated 12.12.1997 was issued to the petitioner imposing four charges. After completion of the departmental enquiry charge nos. 1 and 2 were not found proved against the petitioner but charge nos. 3 and 4 were found to be proved against him.
3. It is the case of the petitioner that only on the basis of the statement of Officer-in-Charge of the Police Station Farakka, Shri P.S.Mitra, the authorities have found charge nos.3 and 4 as proved against the petitioner. The egg seller and the Commandant were never examined. This creates a serious doubt over the incident. Proper opportunity of hearing and leading the evidence were not Signature Not Verified Signed by: SHALINI LANDGE Signing time: 6/19/2023 4:36:07 PM 3 provided to the petitioner. The witness Sub Inspector, Shri P.S.Mitra was already biased and prejudiced against the petitioner and therefore, the statement given by him should not have been considered by the authorities because the same is not supported by any other evidence. It is the further pleaded that virtually the departmental enquiry was based upon no evidence as the material witnesses have not been examined. The authorities have imposed the punishment of removal from the services based upon the previous conduct of the petitioner. It is argued that harsh punishment of removal from service could not have been imposed placing reliance upon the previous conduct of the employee. The writ court has failed to consider the aforesaid aspect of the case. The order has been passed by merely placing reliance upon the judgment passed by the Hon'ble Supreme Court to the effect that only procedural irregularities could have been seen at this stage and that there cannot be any consideration of evidence by the writ court. It was further held that the order passed by the competent authority for removing the petitioner from service has been affirmed in appeal, therefore, no interference was called for and the writ petition was dismissed. However, the fact remains that the legal arguments raised by the petitioner that the previous conduct/allegations against the petitioner could not have been considered for imposition of harsh punishment of removal from service has not been appreciated. There was no such charge levied against the petitioner regarding the previous conduct. Hence, the departmental enquiry should have been confined to the charges which have been levied against the petitioner and the punishment if any, should have been based upon the charges which were found proved. Hence, the authority committed a grave error in passing the order of removal from service. The learned Single Judge has failed to consider this aspect of the matter, therefore, Signature Not Verified Signed by: SHALINI LANDGE Signing time: 6/19/2023 4:36:07 PM 4 the appeal has been preferred.
4 . Per contra, learned counsel appearing for the respondents has vehemently opposed the contentions and supported the impugned order. It is submitted that the petitioner is the employee of a distinct place and, therefore, was required to be disciplined hence, he should not have been doing any act leading to tarnishing the image of the uniformed disciplined force. The act of the petitioner and his involvement in indisciplined activities has made him unbecoming of a member of the disciplined force. Four charges were levied against the petitioner. Charge nos. 3 and 4 were found to be proved against the petitioner. It is not the case of the petitioner that there is a procedural error committed by the authorities in conducting the departmental enquiry. The ground which has been raised by the petitioner is that the egg seller and the Commandant have not been examined. The petitioner could have very well file an application or request the Inquiry Officer to call the egg seller or the Commandant to be confined as witnesses but no such application was preferred by him. On the contrary, he continued to participate in the departmental enquiry. He was provided ample opportunity of hearing and cross examine the witnesses at the relevant time. No such objection was raised by him. Charge no.3 was found to be proved by the authorities. The law with respect to interference in the case of departmental enquiry is very limited as far as proceedings under Article 226 of the Constitution of India are concerned. The Hon'ble Supreme Court has recently considered the aforesaid aspect in the cases of Union of India and Ors. v. P. Gunasekara n reported in (2015) 2 SCC 610 and in Union of India and others Vs. Dalbir Singh reported in (2021) 11 SCC 321. The writ court has rightly considered the aforesaid aspect Signature Not Verified Signed by: SHALINI LANDGE Signing time: 6/19/2023 4:36:07 PM 5 of the case and has dismissed the writ petition therefore, no relief can be extended to the petitioner and hence, he has prayed for dismissal of the appeal.
5. Heard the learned counsels for the parties and perused the record.
6. The record indicates that there are four charges levied against the petitioner which are as follows :-
ARTICLE OF CHARGE - I "On 19.11.1997 at about 22:00 hrs he left the Battalion Camp, Farakka and visited Farakka More for which he did not take permission from his seniors."
ARTICLE OF CHARGE - II "On 19.11.1997 at about 22:30 hrs he created nuisance in a public place near the egg seller in Farakka More."
ARTICLE OF CHARGE - III "On 19.11.1997 at about 22:30 hrs on getting information about the nuisance created by Const. A.K. Tiwari, the Farakka Police headed by SI P.S. Maitra OIC came to Farakka More and inquired the fact Const. A.K.Tiwari abused the OIC Farakka P.S. as well as passed derogatory remarks against the police Department as a whole thereby displayed insubordinate behavior."
ARTICLE OF CHARGE - IV "Incorrigible habit of indulging indiscipline activities and unbecoming conducts during the past service."
7. Charge nos.1 and 2 are not found proved against the petitioner and charge nos. 3 and 4 were found proved against the petitioner. It is not the case where the petitioner could have pointed out the procedural irregularities committed in conducting a departmental enquiry. The petitioner was granted ample opportunity of hearing and cross examine the witnesses and he continued to participate in the departmental enquiry. He has never filed any application for calling the egg seller or the Commandant as witnesses to the proceedings. After completion of the departmental enquiry and finding charge no.3 proved against the petitioner, he cannot raise a ground that the egg seller or the Commandant Signature Not Verified Signed by: SHALINI LANDGE Signing time: 6/19/2023 4:36:07 PM 6 were not examined therefore, the departmental enquiry was vitiated. The statement of Shri P.S.Mitra, Office-in-Charge Police Station was recorded in the presence of the petitioner. He was the person who has taken the petitioner to the Commandant and the petitioner was also identified by him therefore, charge no.3 was found proved by the authorities. The authorities have further noted that the petitioner who was working in a uniformed disciplined force was found involved in such indisciplined activities on nine previous occasions. The departmental proceeding were initiated against him on earlier occasions but the authorities took a lenient view but despite of the same, there was no improvement in the behavior of the petitioner and the very conduct of the petitioner made him unbecoming of a member of a disciplined force. Apart from charge no.3, the aforesaid aspect was also taken into consideration by the authorities.
8. The law with respect to the interference in the cases of departmental enquiry is settled by the Hon'ble Supreme Court in the cases of P. Gunasekaran (supra) and Dalbir Singh (supra). The P.Gunasekaran (supra) has held as under :-
''12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re- appreciation of the evidence. 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
Signature Not Verified
Signed by: SHALINI
LANDGE
Signing time: 6/19/2023
4:36:07 PM
7
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 f a i r 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 considerations;
( 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 finding;
(i) the finding of fact is based on no evidence.
13. Under Article 226/227 of the Constitution of India, the High Court shall not:
(i) re-appreciate 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;
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience.'' The petitioner has failed to point out any illegality or lapses on the part of the authorities in conducting the departmental enquiry. It is not the case where departmental enquiry was not conducted by the competent authorities. Under these circumstances, no relief could be extended to the petitioner. The writ court has rightly considered the aforesaid aspect of the case and has dismissed Signature Not Verified Signed by: SHALINI LANDGE Signing time: 6/19/2023 4:36:07 PM 8 the writ petition.
9. The writ appeal sans merit and is accordingly dismissed. No order as to costs.
10. Pending interlocutory application stands disposed off.
(RAVI MALIMATH) (VISHAL MISHRA)
CHIEF JUSTICE JUDGE
Sha
Signature Not Verified
Signed by: SHALINI
LANDGE
Signing time: 6/19/2023
4:36:07 PM