Delhi District Court
Bhoop Singh vs The Union Of India on 16 July, 2011
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IN THE COURT OF CIVIL JUDGE-I, NEW DELHI DISTRICT, DELHI
Presided By : Sh. Jay Thareja, DJS
Civil Suit No: 183/10
Unique Case ID No.02403C0309142010
Bhoop Singh,
S/o Sh. Prabhati Lal,
R/o Village - Meghot Hala,
P.O. - Nangal Chaudhary,
District - Mahendergarh,
Haryana ... Plaintiff
Versus
1. The Union of India,
Through Secretary,
Ministry of Home Affairs,
North Block, New Delhi-110001.
2. The Inspector General/Airport Sector,
CISF Hqrs., 13, CGO Complex,
New Delhi.
3. The Deput Inspector General,
West Airport Zone,
Central Industrial Security Force,
Kendriya Sadan, Navi Mumbai.
4. The Senior Commandant,
CSI Airport, Mumbai-99 ... Defendants
SUIT FOR DECLARATION AND MANDATORY INJUNCTION
DATE OF INSTITUTION : 27.09.2010
DATE OF ARGUMENTS : 05.07.2011
DATE OF DECISION : 16.07.2011
Civil Suit No.183/10
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JUDGMENT
1. By way of the present suit, the plaintiff has challenged the termination of his services pursuant to a departmental inquiry conducted against the plaintiff by the defendants under the Central Industrial Security Force Rules, 2001 (henceforth 'CISF Rules, 2001'). The exact prayer made by the plaintiff, is reproduced below:
"It is, therefore, humbly prayed that a decree for declaration be passed in favour of the plaintiff and against the defendants declaring the order of punishment inflicting the disproportionate punishment of Dismissal from service vide Order NO.
V-15014/CISF/CSIA(M)/BS-Goa AP/07/7808 dated 28.11.2007 of Disciplinary Authority i.e. Senior Commandant CISF Unit, Goa Airport, Appellate Order NO. V-14014/W-AP/A-BT/L&R/2007/689 dated 04.02.2008 of the Appellate Authority i.e. Deputy Inspector General/ West Airport Hqrs, Navi Mumbai and Order No. V-11014/APS/13(BS)/LS/2008/10169 dated 24.09.2008 of rejecting the Revision Petition by the Revisioning Authority i.e. Inspector General/Airport Sector CISF Hqrs, New Delhi, as illegal, null and void and the plaintiff be treated as continuing in service since 28.11.2007 with all the consequential service and monetary benefits, which the plaintiff is Civil Suit No.183/10 :3: entitled to receive on his being treated in service w.e.f. 28.11.2007"
2. The facts leading to the filing of the present suit are that the plaintiff herein, at the relevant time was working as a constable in Central Industrial Security Force (henceforth 'CISF') and was posted at CISF Unit, ASG Goa Airport, Goa. On 09.05.2007 an allegation was made by one, Ms. Sanyogita Dhovi that while her husband, Constable D. T. Raj had gone to his ancestral house on leave and she was sleeping at her residence, the plaintiff, at 5:00 a.m., had unauthorizedly entered into her house and attempted to do wrongful act with her.
3. In view of the aforesaid allegation made against the plaintiff, a departmental inquiry was initiated and a charge sheet was drawn up against the plaintiff, containing the following charge:
" Article of charge Force No. 032280078 Constable Bhoop Singh of CISF Unit, Goa Airport, on 09.05.2007 in the morning at about 5:00 a.m. unauthorisedly went into the house of his neighbour Constable D.T. Raj and attempted to do wrongful act with his wife Smt. Sanyogita Dhovi, when Constable D.T. Raj had gone to his ancestral house on leave. The act committed by Constable Bhoop Singh symbolizes gross indiscipline Civil Suit No.183/10 :4: and fall of character of Force member and tarnishes image of the force. Hence the charge."
4. Pursuant to the initiation of the aforesaid inquiry, Sh. MS Bisht, Inspector was appointed as the Inquiry Officer and Sh. AK Sharma was appointed as the Presenting Officer. During the departmental inquiry, Sh. MS Bisht examined six witnesses 1 on behalf of the department, two witnesses on behalf of the plaintiff and one court witness. After recording of the evidence of the said witnesses and considering the final written statement filed by the department and the plaintiff, Sh. MS Bisht submitted a report, wherein he found that the plaintiff was guilty of the charge drawn up against him.
5. Thereafter, the matter was placed before the Disciplinary Authority, Senior Commandant, CISF Unit, Goa Airport, who directed the plaintiff to file his representation against the findings recorded by the Inquiry Officer. Upon considering the representation filed by the plaintiff on 23.11.2007, the Disciplinary Authority, on 28.11.2007, passed an Order imposing the penalty of 'dismissal of service' on the plaintiff. In the Order, the Disciplinary Authority stated that in the representation, the plaintiff has not given sufficient reasons to discredit the report of the Inquiry Officer.
6. Being aggrieved by the Order passed by the 1 Initially, seven witnesses were cited in the documents supplied to the plaintiff alongwith the charge sheet. However, during the course of inquiry, PW-4 Smt. Tara Yadav did not depose before the Inquiry Officer.
Civil Suit No.183/10 :5:Disciplinary Authority, the plaintiff filed an appeal before the Appellate Authority, Deputy Inspector General/ West Airport Hqrs, Navi Mumbai. The said appeal was dismissed by the Appellate Authority vide its Order dated 4.2.2008. Thereafter, the plaintiff filed a revision before the Revisioning Authority, Inspector General/Airport Sector CISF Hqrs, New Delhi. The said revision was dismissed by the Revisioning Authority vide its Order dated 24.9.2008.
7. In this suit, the plaintiff has challenged the procedure adopted during the departmental inquiry, the report of the Inquiry Officer dated 22.10.2007, the Order of the Disciplinary Authority dated 28.11.2007, the Order of the Appellate Authority dated 4.2.2008 and the Order of the Revisional Authority dated 24.9.2008.
8. The plaintiff has challenged the procedure adopted during the departmental inquiry on the ground(s) that :
(a) Despite request made during the preliminary inquiry on 19.7.2007, the plaintiff was not supplied a copy of the complaint made by Ms. Sanyogita Dhovi on 9.5.2007 and a copy of his medical examination done by Dr. Anil Mehndiratta on
9.5.2007.
(b) The plaintiff was not supplied with a copy of the statements of witnesses and the report of Inspector Anil Malghade, submitted pursuant to a preliminary inquiry conducted by Inspector Anil Malghade on 9.5.2007.
(c) In violation of the principles of natural justice, the Civil Suit No.183/10 :6: Inquiry Officer, while examining, PW-2, Smt. Shardha Amrekar, PW-3 Sakha Ram Amrekar and PW-5, SI Sujit Kumar had permitted the Presenting Officer, Sh. AK Sharma to cross examine the said witnesses before giving the plaintiff an opportunity to cross examine the said witnesses.
(d) In violation of the principles of natural justice, the Inquiry Officer examined CW-1, Inspector Anil Malghade on 4.10.2007 i.e. after the recording of the statement of defence of the plaintiff on 18.8.2007, thereby denying the plaintiff, the opportunity to explain the adverse testimony of CW-1 Inspector Anil Malghade.
9. The plaintiff has challenged the report of the Inquiry Officer dated 22.10.2007, the Order of the Disciplinary Authority dated 28.11.2007, the Order of the Appellate Authority dated 4.2.2008 and the Order of the Revisional Authority dated 24.9.2008 on the ground that the said authorities arbitrarily discarded the testimony of DW-1 Ms. Kanta Kumari and DW-2 Sh. KL Yadav on the premises that it relates to the conduct of Ms. Sanyogita Dhovi prior to the incident dated 9.5.2007 and that the plaintiff had not reported the incident dated 8.5.2007 to any competent authority of the Unit. Also, the plaintiff has challenged the report of the Inquiry Officer dated 22.10.2007, the Order of the Disciplinary Authority dated 28.11.2007, the Order of the Appellate Authority dated 4.2.2008 and the Order of the Revisional Authority dated 24.9.2008 on the ground that the said authorities did not consider the plea(s) of the plaintiff that :
Civil Suit No.183/10 :7:(a) The complaint of Ms. Sanyogita Dhovi was a retributive outcome of the humiliation suffered by Ms. Sanyogita Dhovi during the incident dated 8.5.2007, when Constable KL Yadav along with his wife had asked Ms. Sanyogita Dhovi to regulate her conduct vis-a-vis the plaintiff.
(b) The department had committed a fatal error in not examining the grandmother of Ms. Sanyogita Dhovi, without whose knowledge, the incident dated 9.5.2007 could not have taken place and who could have given the best evidence regarding the opening of the door of the house of Ms. Sanyogita Dhovi.
(c) The testimony/explanation given by Ms. Sanyogita Dhovi that the door had been left open by her grandmother, is without foundation because at the relevant time, Ms. Sanyogita Dhovi was asleep and could not have known how the door of her house had been opened.
(d) The conduct of Ms. Sanyogita Dhovi, in reporting the matter to her husband, at 8 am and thereafter, to the landlord, Sh. Sakharam Amrekar and his wife, Ms. Shardha Amrekar is unnatural as any woman would have immediately raised a hue and cry about the alleged incident.
(e) At 5 am, in the morning, in the absence of any artificial light or day-light, Ms. Sanyogita Dhovi could not have identified the plaintiff and the entire story of Ms. Sanyogita Dhovi regarding the injury on the foot of the plaintiff is concocted as she had prior knowledge of the fact that the plaintiff had suffered an injury during an accident on 8.5.2007.
(f) The statement of Ms. Sanyogita Dhovi that the Civil Suit No.183/10 :8: plaintiff had stayed in her room for five minutes after the incident, is incredible because in the natural course of events, no person who would have indulged in the alleged conduct would have waited for five minutes in the room of the complainant. Instead, such a person would have immediately rushed from the room.
(g) In the alleged circumstances, it would not have been possible for Ms. Sanyogita Dhovi to slap the plaintiff on the right cheek from the back side of her right hand.
(h) During the entire proceedings, Ms. Sanyogita Dhovi has improved her case by changing the time of the alleged incident to 5 am from 5.15 am and by changing the time of coming out of the plaintiff from the room of Ms. Sanyogita Dhovi from 5 minutes to 2-3 minutes.
10. In the joint written statement filed on behalf of all the defendants, the defendants have stated that the departmental inquiry had been conducted against the plaintiff in accordance with Rule 36 of the CISF Rules, 2001 and did not suffer from any procedural impropriety or denial of natural justice to the plaintiff. At every stage, the plaintiff was granted a full and fair opportunity to present his case and defend himself and that no leniency has been shown towards the plaintiff as it was proved during the departmental inquiry that the plaintiff had outraged the modesty of Ms. Sanyogita Dhovi, wife of Constable DT Raj.
11. In respect of the challenge made by the plaintiff to the procedure adopted during the departmental inquiry, the Civil Suit No.183/10 :9: defendants have stated that :-
(a) During the departmental inquiry, the plaintiff was supplied a copy of the complaint made by Ms. Sanyogita Dhovi on 9.5.2007 and a copy of his medical examination done by Dr. Anil Mehndiratta on 9.5.2007. The defendants have contended that this fact is corroborated by the order-sheet recorded by the Inquiry Officer on 19.7.2007 and the reply given by the plaintiff to question no.4, during the departmental inquiry proceedings on 17.10.2007.
(b) The copy of the statements of witnesses and the report of Inspector Anil Malghade, submitted pursuant to a preliminary inquiry conducted on 9.5.2007 were not supplied to the plaintiff as they were not listed documents and were not intended to be used against the plaintiff.
(c) The questions asked by the Presenting Officer and the Inquiry Officer to PW-2 Smt. Shardha Amrekar, PW-3 Sakharam Amrekar and PW-5 Sh. Sujit Kumar immediately after their examination in chief cannot be termed as cross- examination.
(d) As per CISF Rules, 2001, it was open for the Inquiry Officer to examine CW-1 Inspector Anil Malghade at any stage of the inquiry proceedings for the purpose of unfolding the sequence of the incidents that had taken place on 9.5.2007. And even otherwise, no prejudice can be said to have been caused to the plaintiff on account of examination of CW-1, Inspector Anil Malghade because the said witness was thoroughly cross examined by the plaintiff on 4.10.2007.Civil Suit No.183/10 :10:
12. In respect of the challenge made to the report of the Inquiry Officer dated 22.10.2007, the Order of the Disciplinary Authority dated 28.11.2007, the Order of the Appellate Authority dated 4.2.2008 and the Order of the Revisional Authority dated 24.9.2008, the defendants have stated that the said authorities had rightfully discarded the testimony of DW-1, Ms. Kanta Kumari and DW-2, Sh. KL Yadav on the ground that the complainant could have reported the incident dated 8.5.2007 to the competent authority of the Unit and in the absence of such reporting, it appears that the defence raised by the plaintiff is an afterthought and intended to defame the complainant, Ms. Sanyogita Dhovi. Also, the defendants have stated that the said authorities had considered all the plea(s) taken by the plaintiff during the course of the respective proceedings and passed Orders that can withstand the judicial scrutiny by this Court.
13. In the replication, the plaintiff has traversed the contents of the written statement filed by the defendant and reiterated and reaffirmed the contents of the plaint.
14. On the aforesaid pleadings of the parties, the following issues were framed on 7.12.2010 :-
"1. Whether the plaintiff is entitled to the declaration that the Order no. V-15014/CISF/ CSIA(M)/BS-GoaAP/07/7808 dated 28.11.2007 of Disciplinary Authority i.e. Senior Commandant CISF Unit, Goa Airport is null and void? OPP/OPD Civil Suit No.183/10 :11:
2. Whether the plaintiff is entitled to the declaration that the Order no. V-14014/W- AP/A-BT/L&R/2007/689 dated 04.02.2008 of the Appellate Authority i.e. Deputy InspectorGeneral/West Airport Hqrs, Navi Mumbai is null and void? OPP/OPD
3. Whether the plaintiff is entitled to the declaration that the Order no. V-11014/ APS/ 13(BS)/LS/2008/10169 dated 24.09.2008 of the Revisioning Authority i.e. Inspector General/ Airport Sector CISF Hqrs, New Delhi is null and void? OPP /OPD
4. Whether the plaintiff is entitled to the consequential relief of reinstatement with all service benefits from 28.11.2007? OPP/OPD
5. Relief."
15. In support of the case of the plaintiff, the plaintiff examined himself and deposed in line with the plaint. Also, the plaintiff tendered in evidence, the following documents:
(i) Charge Memorandum No.V-15014/CISF/GPA(Goa)/Disc/Bhoop Singh/07-114 dated 23.6.2007, (Ex.PW-1/P2).
(ii) Reply to the charge memorandum dated 29.6.2007, (EX.PW-1/P3).
(iii) Order no. V-15014/CISF/CSIA(M)/(BS-Goa AP/07/7808 of the Disciplinary Authority dated 28.11.2007, (EX.PW-1/P4).
(iv) Appeal submitted by the plaintiff to the Appellate Authority, (EX.PW-1/P5).Civil Suit No.183/10 :12:
(v) Order no. V-14014/W-AP/A-BT/L&R/2007/689 of the Appellate Authority dated 4.2.2008, (EX.PW-1/P6).
(vi) Revision Petition submitted by the plaintiff to the Revisioning Authority, (EX.PW-1/P7).
(vii) Order no. V-11014/APS/13(BS)/LS/2008/10169 of the Revisioning Authority dated 24.09.2008, (EX.PW-1/P8).
(viii) Legal Notice dated 12.4.2010, (EX.PW-1/P9).
(ix) Reply to the Legal Notice vide letter no. V-1404/APS/LN-08/LS/2010/6833 dated 2.7.2010, (EX.PW-1/P10).
(x) Postal Receipts, (EX.PW-1/P11).
(xi) Acknowledgment Card, (Ex.PW-1/P12).
16. During cross-examination, the plaintiff stated that at the relevant time, he was staying at a private accommodation with his family and knew Ms. Sanyogita Dhovi as the wife of his neighbour, Constable DT Raj. The plaintiff denied that he had entered the residence of Constable DT Raj during 4 am to 4 pm on 9.5.2007. Also, the plaintiff reiterated that he was not supplied all the documents during the departmental inquiry. After cross examination of the plaintiff, the plaintiff evidence was closed.
17. The defendants did not lead any ocular evidence. Instead, the defendants handed over in Court, the entire record of the departmental inquiry held against the plaintiff.
18. I had heard Sh. HS Dhaiya, Ld. Advocate for the plaintiff and Sh. Sayed Rehan, Ld. Advocate for the defendants Civil Suit No.183/10 :13: on 9.6.2011. The issue wise findings, in this case are as follows:
ISSUE NO. 1, 2 & 319. In support of the case of the plaintiff on these issues, the Ld. Advocate for the plaintiff had reiterated the grounds stated in the plaint and referred to the judgments in State of UP v Shatrughan Lal & Anr., JT 1998(6) SC 55, Rajbir Singh v UOI & Ors, WP (C) 12251/2004 decided by the Hon'ble High Court of Delhi on 8.12.2009, Krishan Pal v UOI & Ors, WP(C) 6918/2009 decided by the Hon'ble High Court of Delhi on 9.3.2011, Man Singh v State of Haryana & Ors, AIR 2008 SC 2481 and Sumer Singh v Union of India and Ors, 2003-II-LLJ-79(Delhi).
20. In State of UP v Shatrughan Lal & Anr.(supra), the Ld. Advocate had referred to the following observation, "6. Preliminary inquiry which is conducted invariably on the back of the delinquent employee may, often, constitute the whole basis of the charge-sheet. Before a person is, therefore, called upon to submit his reply to the charge sheet, he must, on a request made by him in that behalf, be supplied the copies of the statements of witnesses recorded during the preliminary enquiry particularly if those witnesses are proposed to be examined at the departmental trial. This principle was reiterated in Kashinath Civil Suit No.183/10 :14: Dikshita v. Union of India & Ors. (1986) 3 SCC 229 (supra), wherein it was also laid down that this lapse would vitiate the departmental proceedings unless it was shown and established as a fact that non-
supply of copies of those documents had not caused any prejudice to the delinquent in his defence."
21. On the strength of the aforesaid observation, the Ld. Advocate had submitted that the defendants were under an obligation to supply to the plaintiff, copies of the statements of witnesses and the report of Inspector Malghade, submitted pursuant to a preliminary inquiry conducted by Inspector Malghade on 09.05.2007. Further, the Ld. Advocate had submitted that the non-supply of the aforesaid documents, had caused grave prejudice to the plaintiff in as much as the plaintiff was unable to confront the department witnesses with their respective statement(s) recorded by Inspector Anil Malghade on 09.05.2007.
22. Drawing reference to Rajbir Singh v UOI & Ors(supra), the Ld. Advocate had submitted that in the said case, the Hon'ble High Court of Delhi had set-aside a departmental inquiry conducted by the defendants on the ground that the inquiry officer and the superior authorities had not considered the defense raised by the delinquent employee and had blindly accepted the word of the complainant.
Civil Suit No.183/10 :15:23. Drawing reference to Krishan Pal v UOI & Ors(supra), the Ld. Advocate had submitted in the said case, the Hon'ble High Court of Delhi had set-aside a departmental inquiry conducted by the defendants on the ground that the inquiry officer and the superior authorities had not given any reasons for discarding the favorable testimony of two department witnesses who had supported the case of the petitioner/delinquent employee.
24. Thereafter, claiming parity with the aforesaid cases, the Ld. Advocate had submitted that in the present case also, the inquiry officer and the superior authorities have not considered the defense raised by the plaintiff and have arbitrarily discarded the favorable testimony of DW-1, Ms. Kanta Kumari and DW-2, Sh. K.L. Yadav. Therefore, the inquiry proceedings should be declared null and void.
25. In Man Singh v State of Haryana & Ors (supra), the Ld. Advocate had referred to the following observation, "19. We may reiterate the settled position of law for the benefit of the administrative authorities that any act of the repository of power whether legislative or administrative of quasi-judicial is open to challenge if it is so arbitrary or unreasonable that no fair minded authority could ever have made it. The concept of equality as enshrined in Article 14 of the Constitution of India embraces the Civil Suit No.183/10 :16: entire realm of State action. It would extend to an individual as well not only when he is discriminated against in the matter of exercise of right, but also in the matter of imposing liability upon him. Equal is to be treated equally even in the matter of executive or administrative action. As a matter of fact, the doctrine of equality is now turned as a synonym of fairness in the concept of justice and stands as the most accepted methodology of a governmental action. The administrative action is to be just on the test of 'fair play' and reasonableness. We have, therefore, examined the case of the appellant in the light of the established doctrine of equality and fair play. The principle is the same, namely, that there should be no discrimination between the appellant and HC Vijay Pal as regards the criteria of punishment of similar nature in departmental proceedings."
26. In Sumer Singh v Union of India and Ors (supra), the Ld. Advocate had referred to the following observation, "Removal from service deprives a person from his livelihood and is a fair serious matter. It, therefore, warrants all requirements and safeguards provided under Civil Suit No.183/10 :17: law to be observed. That nobody should be condemned unheard is the fundamental principle of natural justice, but even this should not be overstretched in cases where it is found that the delinquent was negligent or deliberately avoiding service of notice on him."
27. On the strength of the aforesaid observations, the Ld. Advocate had submitted that the report of the Inquiry Officer dated 22.10.2007, the Order of the Disciplinary Authority dated 28.11.2007, the Order of the Appellate Authority dated 4.2.2008 and the Order of the Revisional Authority dated 24.9.2008 are liable to be declared null and void as they are arbitrary and unreasonable to the extent that no reasonable/fair minded person would have reached the conclusions reached by the said authorities.
28. While opposing the case of the plaintiff on these issues, the Ld. Advocate for the defendants had submitted that the signatures at point 'X' on the original complaint of Ms. Sanyogita Dhovi dated 09.05.2007 constitutes proof of the fact that the said document was provided to the plaintiff. Further, the Ld. Advocate had submitted that during the departmental inquiry proceedings dated 07.10.2007, the plaintiff, in response to question no. 4 had admitted that he had received all the documents and in view the said statement, the plaintiff is estopped from claiming that he had not received the copy of the Civil Suit No.183/10 :18: complaint made by Ms. Sanyogita Dhovi on 9.5.2007 and the copy of his medical examination done by Dr. Anil Mehndiratta on 9.5.2007. With respect to the remaining grounds urged in the plaint, the Ld. Advocate had reiterated the defense stated in the written statement. In support of the report of the Inquiry Officer dated 22.10.2007, the Order of the Disciplinary Authority dated 28.11.2007, the Order of the Appellate Authority dated 4.2.2008 and the Order of the Revisional Authority dated 24.9.2008, the Ld. Advocate had submitted that all these authorities had considered all the plea(s) of the plaintiff and their Orders do not suffer from any illegality that may warrant interference by this Court.
29. I have bestowed my thoughtful consideration to the rival submissions made at the Bar. However, before adverting to them, I consider it appropriate to discuss the law regarding the scope of the jurisdiction of a Civil Court to interfere with the departmental inquiry and Orders passed by the defendants against the plaintiff.
30. In Chairman-cum-Managing Director, Coal India Ltd. and Anr. v Mukul Kumar Choudhuri and Ors, AIR 2010 SC 75, the Hon'ble Supreme Court of India has reaffirmed its previous judgments in the following words:
"In the case of State of Andhra Pradesh and others v. Chitra Venkata Rao AIR 1975 SC 2151, this Court considered the scope of judicial review in dealing with departmental Civil Suit No.183/10 :19: enquiries and held :
21. The scope of Article 226 in dealing with departmental inquiries has come up before this Court. Two propositions were laid down by this Court in State of A.P. v. S. Sree Rama Rao (AIR 1963 SC 1723). First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him, the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied. If that rule be not applied by a domestic tribunal of inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental enquiry invalid. The High Court is not a Court of appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court is concerned to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Second, where there is some evidence which the authority Civil Suit No.183/10 :20: entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence and to arrive at an independent finding on the evidence. The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be Civil Suit No.183/10 :21: canvassed before the High Court in a proceeding for a writ under Article 226.
22........
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 Civil Suit No.183/10 :22: sustain a finding. The adequacy or sufficiency 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. See Syed Yakoob v. K.S. Radhakrishnan (AIR 1964 SC 477).
24. The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do."
Civil Suit No.183/10 :23:31. In Narinder Mohan Arya v United India Insurance Co. Ltd. and Ors., AIR 2006 SC 1748, the Hon'ble Supreme Court of India has observed, "In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angles. Despite limited jurisdiction a civil court, it was entitled to interfere in a case where the report of the Enquiry Officer is based on no evidence. In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it should keep in mind the following: (1) the enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry. [See State of Assam and Anr. v.
Mahendra Kumar Das and Ors.[ (1970) 1 SCC 709 : AIR 1970 SC 1255] (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice [See Khem Chand v. Union of India and Ors., AIR 1958 SC 300 and State of Uttar Pradesh v. Om Prakash Gupta, (1969) 3 SCC 775]. (3) Exercise of discretionary power involve two elements - (i) Objective and (ii) subjective Civil Suit No.183/10 :24: and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. [See K.L. Tripathi v. State of Bank of India and Ors. [ (1984) 1 SCC 43 : AIR 1984 SC 273]. (4) It is not possible to lay down any rigid rules of the principles of natural justice which depends on the facts and circumstances of each case but the concept of fair play in action is the basis. [See Sawai Singh v. State of Rajasthan [ AIR 1986 SC 995] (5) The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject-matter of the charges is wholly illegal. [See Director (Inspection and Quality Control) Export Inspection Council of India and Ors. v. Kalyan Kumar Mitra and Ors. [ 1987 (2) CLJ 344]. (6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. [See Central Bank of India Ltd. v. Prakash Chand Jain, AIR 1969 SC 983, Kuldeep Singh v. Commissioner of Police and others, (1999) 2 SCC 10]."
Civil Suit No.183/10 :25:32. In R.C. Sharma v Union of India, AIR 1976 SC 2037, the Hon'ble Supreme Court of India has observed, "10. A suit challenging the validity of departmental proceedings cannot be treated as an appeal from the findings in the departmental proceedings or the punishment inflicted upon the Govt. servant even if these are erroneous. A question which could affect the result in a civil suit has to be of such a nature that it goes to the root of the jurisdiction and the conduct of the departmental trial and vitiates the result. It is only if the departmental proceeding is null and void that a plaintiff in such a suit could obtain the reliefs he had asked for. We are unable to see what point had been raised by the appellant which could have had that effect upon the departmental proceedings."
33. The correct position of law that emerges from the aforesaid judgments is that a Civil Court cannot sit in appeal over a departmental inquiry or the Orders passed by the Disciplinary Authority, Appellate Authority and the Revisional Authority. Only in the exceptional/limited circumstances, identified in the aforesaid judgments, a Civil Court can interfere with a departmental inquiry or the Orders passed by the Disciplinary Authority, Appellate Authority and the Revisional Civil Suit No.183/10 :26: Authority.
34. Keeping in mind, the aforesaid position of law, I now proceed to the examine the challenge made by the plaintiff to the procedure adopted during the departmental inquiry and the challenge made by the plaintiff to the report of the Inquiry Officer dated 22.10.2007, the Order of the Disciplinary Authority dated 28.11.2007, the Order of the Appellate Authority dated 4.2.2008 and the Order of the Revisional Authority dated 24.9.2008.
35. In respect of the procedure adopted during the departmental inquiry, the first contention of the plaintiff is that despite the request made on 19.7.2007, he was not supplied a copy of the complaint made by Ms. Sanyogita Dhovi dated 9.5.2007 and a copy of medical examination done by Dr. Anil Mehndiratta on 9.5.2007. In respect of this contention, I find that in the order-sheet dated 19.7.2007, which is at page 2 of the inquiry file handed over by the defendants, the Inquiry Officer, Sh. MS Bisht has specifically recorded that during the preliminary inquiry, conducted on 19.7.2007, the plaintiff had demanded a copy of the aforesaid documents and that the said documents were supplied to the plaintiff. Also, I find that the order-sheet dated 19.7.2007 was signed by the plaintiff.
36. In my view, if the plaintiff would not have received the aforesaid documents on 19.7.2007, he would not have signed the order-sheet dated 19.7.2007 without recording a protest.
Civil Suit No.183/10 :27:Further, in my view, the signatures of the plaintiff on the order- sheet dated 19.7.2007, coupled with the signatures of the plaintiff at point 'X' on the original complaint of Ms. Sanyogita Dhovi dated 09.05.2007 and the reply given by the plaintiff to question no.4 during the departmental inquiry proceedings dated 7.10.2007, constitute sufficient proof of the fact that the aforesaid documents were supplied to the plaintiff during the departmental inquiry. Therefore, I find that the first contention of the plaintiff is false and unacceptable.
37. The second contention of the plaintiff is that he was not supplied with a copy of the statements of witnesses and the report of Inspector Anil Malghade submitted pursuant to a preliminary inquiry conducted by Inspector Anil Malghade on 9.5.2007. In respect of this contention, I find that in view of the judgment of the Hon'ble Supreme Court of India in State of UP v Shatrughan Lal & Anr. (supra), it was incumbent upon the defendants to supply to the plaintiff, the statements of Ms. Sanyogita Dhovi, Ms. Shardha Amrekar, Sh.Sakharam Amrekar, Ms. Tara Yadav, Sujit Kumar, Ram Avtar and KK Desai recorded on 9.5.2007 by Inspector Anil Malghade as all the said witnesses were cited in the list of witnesses by the defendants for the purpose of the departmental inquiry. Also, I find that it was incumbent upon the defendants to supply to the plaintiff, the preliminary inquiry report of Inspector Anil Malghade, especially when the Inquiry Officer, Sh. MS Bisht had decided to examine Inspector Anil Malghade as a Court witness.
Civil Suit No.183/10 :28:38. In my view, the non-supply of the statements of Ms. Shardha Amrekar, Sh.Sakharam Amrekar, Ms. Tara Yadav, Sujit Kumar, Ram Avtar and KK Desai recorded on 9.5.2007 by Inspector Anil Malghade, gravely prejudiced the plaintiff because all the said witnesses had given hearsay evidence during the departmental inquiry and if, the plaintiff would have had their previously recorded statements, he would have been able to effectively cross examine the said witnesses by confronting them with their earlier statements recorded on 9.5.2007.
39. Further, in my view, the defence taken by the defendants that the said documents were not supplied to the plaintiff because they were not listed in the charge-sheet supplied to the plaintiff, does not constitute a valid ground for non-supply of the said documents because Rule 36(16) of the CISF Rules, 2001 mandates that if the Inquiry Officer, allows production of new evidence or calls for new evidence, then the charged official should be provided with a copy of the list of further evidence proposed to be produced. In the present case, I find that by examining Inspector Anil Malghade as a Court witness, the Inquiry Officer, Sh. MS Bisht had allowed a back- door entry to the aforesaid statements and report and therefore, their non-supply had prejudiced the plaintiff in putting forth a proper defence against the case of the department.
40. The third contention of the plaintiff is that in violation of the principles of natural justice, the Inquiry Officer, while Civil Suit No.183/10 :29: examining, PW-2, Smt. Shardha Amrekar, PW-3 Sakha Ram Amrekar and PW-5, SI Sujit Kumar had permitted the Presenting Officer, Sh. AK Sharma to cross-examine the said witnesses before giving the plaintiff an opportunity to cross examine the said witnesses. In respect of this contention, I find it expedient to refer to the law laid down by the Hon'ble Supreme Court of India in Union of India v T. R. Varma, AIR 1957 SC 882, wherein it has been observed, "The Evidence Act has no application to enquiries conducted by tribunals, even though they may be judicial in character. The law requires that such tribunals should observe rules of natural justice in the conduct of the enquiry and if they do so their decision is not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a Court of law. Stating it broadly and without intending it to be exhaustive it may be observed that rules of natural justice require that a party should have the opportunity of adducing all relevant evidence on which he relies, that the evidence of the opponent should be taken in his presence, and that he should be given the opportunity of cross- examining the witnesses examined by that party, and that no materials should be relied on against him without his being given an Civil Suit No.183/10 :30: opportunity of explaining them. If these rules are satisfied, the enquiry is not open to attack on the ground that the procedure laid down in the Evidence Act for taking evidence was not strictly followed."
41. Upon examining the contention of the plaintiff, in light of the aforesaid observation and after perusing the questions put by the Presenting Officer, Sh. AK Sharma to PW-2, Smt. Shardha Amrekar, PW-3 Sakha Ram Amrekar and PW-5, SI Sujit Kumar, I find that no prejudice can be said to have been caused to the plaintiff on account of the questions put by the Presenting Officer, Sh. AK Sharma to PW-2, Smt. Shardha Amrekar, PW-3 Sakha Ram Amrekar and PW-5, SI Sujit Kumar, because the questions were clarificatory questions and not leading questions. Therefore, in my view, this contention of the plaintiff is devoid of any merit.
42. The fourth contention of the plaintiff is that in violation of the principles of natural justice, the Inquiry Officer examined CW-1, Inspector Anil Malghade on 4.10.2007 i.e. after the recording of the statement of defence of the plaintiff on 18.8.2007, thereby denying the plaintiff, the opportunity to explain the adverse testimony of CW-1 Inspector Anil Malghade. In order to adjudicate on this contention, I find it expedient to refer to Rule 36 (16) of the CISF Rules, 2001, wherein it is stated, "[(16). If it shall appear necessary before the close of the case on behalf of the Disciplinary Civil Suit No.183/10 :31: Authority, the Inquiring Authority may, in its discretion, allow the Presenting Officer to produce evidence not included in the list given to the enrolled member of the Force or may itself call for new evidence or recall and re-examine any witness and in such case the enrolled member of the Force shall be entitled to have, if he demands it, a copy of the list of further evidence proposed to be produced and an adjournment of the enquiry for three clear days before the production of such new evidence, exclusive of the day of adjournment and the day to which the enquiry is adjourned. The Inquiring Authority shall give the enrolled member of the Force an opportunity of inspecting such documents before they are taken on the record. The Inquiring Authority may also allow the enrolled member of the Force to produce new evidence, if it is of the opinion that the production of such evidence is necessary, if the interest of justice.
Note - New Evidence shall not be permitted or called for or any witness shall not be recalled to fill up any gap in the evidence. Such evidence may be called for only when there is an inherent lacuna of defect in the evidence which has been produced Civil Suit No.183/10 :32: originally] "
43. The logical conclusion that follows from a literal reading of the aforesaid Rule is that the appropriate stage for the examination of Inspector Anil Malghade was before the close of the case of the department by Sh. AK Sharma, Presenting Officer. Thus, I find that the Inquiry Officer, Sh. MS Bisht had violated Rule 36(16) by examining Inspector Anil Malghade after the recording of the statement of defence of the plaintiff.
44. It is needless to state, but , the Inquiry Officer, Sh. MS Bisht, could have rectified this error by re-recording the statement of defence of the plaintiff. However, since no such exercise was done by the Inquiry Officer, I find that the Inquiry Officer, Sh. MS Bisht had prejudiced the case of the plaintiff by examining CW-1, Inspector Anil Malghade on 4.10.2007 i.e. after the recording of the statement of defence of the plaintiff on 18.8.2007.
45. In respect of the report of the Inquiry Officer dated 22.10.2007, the Order of the Disciplinary Authority dated 28.11.2007, the Order of the Appellate Authority dated 4.2.2008 and the Order of the Revisional Authority dated 24.9.2008, the first contention of the plaintiff is that the said authorities have arbitrarily discarded the testimony of DW-1 Ms. Kanta Kumari and DW-2 Sh. KL Yadav. In respect of this contention, I find that the said authorities have discarded the evidence given by the said witnesses on the ground that it relates to the conduct of Ms. Civil Suit No.183/10 :33: Sanyogita Dhovi prior to the incident dated 9.5.2007 and on the ground that the plaintiff had not reported the incident dated 8.5.2007 to any Competent Authority of the Unit. In my view, the reasoning given by the said authorities is feeble but not perverse to the extent that no reasonable person would have adopted it. Further, in my view, the said authorities were justified in discarding the testimony of DW-1 Ms. Kanta Kumari and DW-2 Sh. KL Yadav because the entire story regarding the incident dated 08.05.2007 appears to be an after-thought of the plaintiff. In order to appreciate this finding, it is relevant to note that in the reply to the charge memorandum dated 29.6.2007, (EX.PW-1/P3), the plaintiff has not mentioned the incident dated 08.05.2007. Also, it is relevant to note that during the cross- examination of Ms. Sanyogita Dhovi, the plaintiff had not put a single question to Ms. Sanyogita Dhovi regarding the incident dated 08.052007. In my view, if the incident dated 08.05.2007 would have happened, the plaintiff would have mentioned it in the reply to the charge memorandum dated 29.6.2007, (EX.PW-1/P3) and put it to Ms. Sayogita Dhovi during her cross- examination. Thus, I find that the said authorities were justified in discarding the testimony of DW-1 Ms. Kanta Kumari and DW-2 Sh. KL Yadav qua the incident dated 8.5.2007.
46. In respect of the other contentions raised by the plaintiff, qua the report of the Inquiry Officer dated 22.10.2007, the Order of the Disciplinary Authority dated 28.11.2007, the Order of the Appellate Authority dated 4.2.2008 and the Order of the Revisional Authority dated 24.9.2008, I find that the said Civil Suit No.183/10 :34: authorities have considered all the pleas of the plaintiff and followed the general principle of law that if the statement of the complainant/prosecutrix inspires confidence, then the Court/Adjudicating Authority should accept the statement and not seek corroboration. In the present case, it is the consistent finding of all the said authorities that the statement of Ms. Sanyogita Dhovi inspires confidence and is reliable. Thus, I find that on the given evidence 1, there is no apparent perversity in the Report/Orders passed by the said authorities. Also, I find that any reconsideration on the contentions raised by the plaintiff, by this Court would amount to exceeding the limited jurisdiction that is conferred upon this Court for the purpose of examining the reports of the Inquiry Officer and the Order(s) of the Disciplinary Authority, the Appellate Authority and the Revisional Authority.
47. Thus, as a net result of the aforesaid discussion, I find that the departmental inquiry conducted against the plaintiff suffered only from procedural ultra-vires because the plaintiff was not supplied with a copy of the statements of witnesses and the report of Inspector Anil Malghade submitted pursuant to a preliminary inquiry conducted by Inspector Anil Malghade on 9.5.2007 and because CW-1, Inspector Anil Malghade was examined after the recording of the statement of defence of the plaintiff.
48. In Kunhayammed and Ors. v. State of Kerala and Anr. 1 In my view, the evidence could have been different, if the plaintiff would have been supplied a copy of the statement of witnesses and the report of Inspector Anil Malghade submitted pursuant to a preliminary inquiry conducted on 9.5.2007.Civil Suit No.183/10 :35:
(2000) 6 SCC 359, the Hon'ble Supreme Court of India has held that on account of the application of the doctrine of merger, the departmental inquiry, report of the inquiry officer, order(s) of the Disciplinary Authority, Appellate Authority and the Revisional Authority merge into one proceeding. Accordingly, in view of the aforesaid findings, the issues 1, 2 and 3 are decided in favor of the plaintiff and against the defendants and it is declared that the report of the Inquiry Officer dated 22.10.2007, the Order of the Disciplinary Authority dated 28.11.2007, the Order of the Appellate Authority dated 4.2.2008 and the Order of the Revisional Authority dated 24.9.2008 are null and void.ISSUE NO. 4
49. In view of the finding on issues no.1, 2 and 3, this issue is decided in favour of the plaintiff and against the defendants. It is directed that the plaintiff would be reinstated in service, forthwith and would be entitled to all service benefits, including salary etc. with effect from 28.11.2007. The said benefits would be released to the plaintiff, within 2 months from today.
RELIEF
50. In view of the findings on the aforesaid issues, the suit filed by the plaintiff has been decreed. The report of the Inquiry Officer dated 22.10.2007, the Order no. V-15014/CISF/ CSIA(M)/BS-GoaAP/07/7808 of the Disciplinary Authority dated 28.11.2007, the Order no. V-14014/W-AP/A-BT/L&R/2007/689 of Civil Suit No.183/10 :36: the Appellate Authority dated 4.2.2008 and the Order no. V-11014/ APS/ 13(BS)/LS/2008/10169 of the Revisional Authority dated 24.9.2008 have been declared null and void and the defendants have been directed to reinstate the plaintiff in the services of the Union of India. Also, the defendants have been directed to grant all service benefits including salary etc. to the plaintiff with effect from 28.11.2007, within 2 months from today. The parties are left to bear their own costs.
Upon preparation of the decree sheet by the Reader, the file shall be consigned to the record room.
Announced in the Open Court (Jay Thareja) On 16.07.2011 Civil Judge-I, New Delhi District New Delhi Civil Suit No.183/10