Anand Kumar vs Union of India (UOI) and Others

D.G.R. Patnaik, J.—Challenge in this writ application is to the:

(i) Order dated 05.03.2008 (Annexure-13), passed by the Respondent No. 4, whereby the petitioner was dismissed from service.

(ii) Order dated 11.07.2008 (Annexure-14), passed by the Respondent No. 3, dismissing the appeal, filed by the petitioner against the order of his dismissal.

(iii) Order dated 10.09.2008 (Annexure-15), passed by the Respondent No. 2, whereby the Revision application filed by the petitioner was also dismissed.

The petitioner has further prayed for a direction to the Respondents to reinstate him in service with full back wages for the dismissal period alongwith all consequential benefits and also alongwith interest thereon.

Heard Mr. R.S. Mazumdar, learned Counsel for the petitioner and Mr. Md. Mokhtar Khan, learned Counsel for the Respondents.

Facts of the petitioner''s case in brief are as follows:

The petitioner was employed as a Constable in the C.I.S.F. Unit in the Bokaro Steel Ltd.

On 23.06.2007, he was posted on duty at one of the gates of the factory for preventing entry of unauthorized vehicles through the gate into the Factory premises.

On the same day, a Truck bearing Registration No. WB-39-9954 was found loaded with scrap material and copper and parked near Weight Bridge No. 5 inside the factory premises. The vehicle was seized by another Constable of the C.I.S.F., namely, Shri A. K. Sharma.

Consequent upon the seizure of the Truck from within the factory premises, the petitioner was placed under suspension vide Departmental order dated 23.06.2007 and later, on 05.07.2007, a memo of charge was served upon the petitioner calling upon him to submit his explanation to the charge.

The substance of charge was that on 23.06.2007, while he was posted at the Mansha Singh Gate No. 2, he had failed to prevent one Truck bearing Registration No. WB-39-9954 from unauthorisedly entering into the Factory premises.

Being dissatisfied with the explanation offered by the petitioner, a departmental proceeding was initiated against him and for conducting the proceedings, an Assistant Commandant, namely, Mr. D. Oraon was appointed as the Enquiry Officer. By order dated 07.11.2007, another Officer, namely, Mr. V.K. Kakkar was designated as the Enquiry Officer in place of the earlier officer namely, Mr. D. Oroan and the new Officer was directed to conduct a fresh enquiry and submit his Report.

The Enquiry Officer conducted the Enquiry and submitted his enquiry Report to the Disciplinary authority on 02.02.2008. A copy of the Enquiry Report was furnished to the petitioner on 04.02.2008, alongwith a show-cause notice calling upon him to submit his explanation against proposed punishment.

The petitioner though submitted his explanation to the second show-cause notice dated 04.02.2008 and against the findings of the Enquiry Officer, the Disciplinary Authority vide the impugned order dated 05.03.2008, imposed the punishment of dismissal from service of the petitioner.

The Appeal preferred by the petitioner against the dismissal order was dismissed by the impugned order dated 11.07.2008.

The Revision application preferred by the petitioner against the appellate order was also dismissed by the concerned authorities by the impugned order dated 10.09.2008.

Assailing the impugned order, the petitioner has raised the following grounds:

(i) The domestic enquiry conducted against the petitioner is against the Rules of Procedure. The disciplinary authority has acted beyond its competence, to direct the de novo enquiry against the petitioner.

Referring to Annexure-9, which is the order dated 30.11.2007, issued by the Disciplinary Authority, Mr. P.A.S. Pati, learned Counsel for the petitioner explains that by this order, the disciplinary authority while appointing another Enquiry officer in this case, had directed a fresh enquiry to be conducted against the petitioner on the ground that the former Enquiry Officer, did not conduct the enquiry according to the Rules. Learned Counsel argues that the procedure for conducting the Domestic enquiries is stipulated in Rule 36 of the Central Industrial Security Forces Rules and it does not provide for conducting a de novo enquiry. The findings of guilt against the petitioner on the basis of de novo enquiry, cannot, according to the learned Counsel, be sustained in law. To buttress his argument, learned Counsel places reliance on the judgment of the apex Court in the case of K.R. Deb Vs. The Collector of Central Excise, Shillong, and in the case of Kanailal Bera v. Union of India and Ors. reported in 2007 AIR SCW 6329.

(ii) The findings as recorded by the Enquiry officer, was based on no reliable evidence. The Enquiry officer has relied upon the statements of hearsay witnesses and the material witnesses, namely, the Driver of the Truck, in question, was not examined at all. Mr. Pati would argue that the findings of the Enquiry Officer are perverse, as it is not supported by any legal evidence. Learned Counsel explains that from a cursory glance of the findings of the Report, it would be manifest that the findings were recorded by the Enquiry Officer only on the basis of suspicion and on the basis of conjectures and surmises, drawn by the Enquiry Officer.

Learned Counsel adds that in view of the findings of the Domestic Enquiry, being perverse and not supported by any legal evidence, the objection of the Respondents against the maintainability of this writ application is misconceived. In support of his argument, learned Counsel would place reliance on the judgment of the Supreme Court in the case of Roop Singh Negi Vs. Punjab National Bank and Others, .

(iii) Even otherwise, the article of charge and the allegation against the petitioner does not make out a case of willful negligence nor does it suggest that the petitioner had acted in collusion with other persons. The article of charge only makes out a case of negligence simplicitor and as such the punishment of dismissal from service is grossly disproportionate to the guilt. Learned Counsel, would explain that the negligence simplicitor would not amount to misconduct, in terms of the Conduct Rules.

Per contra, the stand taken by the Respondents while denying and disputing the entire grounds advanced by the petitioner is, as follows:

(i) The instant writ application is not maintainable considering the fact that the findings of guilt against the petitioner as recorded by the Enquiry Officer in the departmental proceedings, was based on evidence related to facts supporting the charges against the petitioner. Such findings have been affirmed by the appellate authority as well as by the Revisional authority. The proceedings were conducted in accordance with the procedural law and by adherence to the principles of natural justice and the petitioner has not suffered any prejudice whatsoever. This Court cannot be called upon to sit as a Court of Appeal or to look into the evidences on record.

In support of his contention, the Respondents would rely upon the judgment of the Supreme Court in the case of State of U.P. and Others Vs. Raj Kishore Yadav and Another, and also on the judgment of this Court in the case of Rajesh Prasad Vs. The Bihar State Food and Civil Supplies Corporation and Others, , besides the case of Mohan Singh v. Union of India and Ors. reported in 2007 (2) J.C.R. 462 (Jhr.).

(ii) The dispute regarding the de novo enquiry is misleading and misconceived. Petitioner had voluntarily participated in the Enquiry without raising any objection and has not suffered any prejudice whatsoever.

In support of this contention, the Respondents would rely upon the judgment of the Punjab & Haryana High Court in the case of State of Punjab v. Harjinder Singh reported in 1992 (2) S.L.R 809.

(iii) The findings of the Enquiry Officer were recorded on the basis of the statements of witnesses, who were examined at the Enquiry. Such witnesses included the Deputy Commandant, who upon conducting the Preliminary Enquiry, had recorded the confessional statement of the Truck Driver, in which the driver had declared that he had entered into the gate of the Factory Premises through the Mansa Singh Gate on 23.06.2007 at about 7:15 hours. The statement of the Truck Driver, as recorded by the Deputy Commandant was introduced in evidence in the Domestic Enquiry against the petitioner. The other witnesses who were present at the time of recording the statement of the Truck Driver, had deposed before the Enquiry Officer that the Truck Driver had confessed his guilt and had stated that he had entered into the Plant through the Mansa Singh Gate.

Dealing with the first ground of objection as raised by the Respondents against the maintainability of this writ application and the scope of judicial review on the findings recorded in the Departmental Enquiry, it is a settled law that in exercise of the jurisdiction under Article 226 of the Constitution of India, the High Court cannot sit as a Court of Appeal over the findings recorded in the departmental proceedings and cannot re-appreciate the evidence for itself to correct the error of fact and neither can it interfere with the findings of fact, based on evidence and substitute its own independent findings.

However, it is also settled by a catena of judgments of the Supreme Court, that the writ Court in exercise of its power in the judicial review can certainly scrutinize the decision-making process and also make a judicial review recorded in the domestic enquiry, if it is shown that such finding is not supported by any evidence on record or is not based on the evidence adduced by the parties or no reasonable person could raise the findings on the basis of the evidence and thereby, the findings are perverse.

In the case of Kuldeep Singh Vs. The Commissioner of Police and Others, , the Supreme Court has observed as follows:

The findings, recorded in a domestic enquiry, can be characterized as perverse if it is shown that such a finding is not supported by any evidence on record or is not based on the evidence adduced by the parties or no reasonable person could have come to those findings on the basis of that evidence.

Approving and accepting this view, as earlier taken by the Supreme Court in the case of Rajinder Kumar Kindra Vs. Delhi Administration through Secretary (Labour) and Others, , the Supreme Court has observed as follows:

It was laid down that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man could come, the findings can be rejected as perverse.

It was also observed that

Where a quasi-judicial Tribunal records findings based on no legal evidence and the findings are his mere ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity or non-application of mind and stands vitiated.

In the instant case, the charge against the petitioner was that despite he being on duty at the security entrance Gate of the Factory, the Truck had entered into the Factory Premises unauthorisedly. The petitioner was therefore, accused of willful negligence in duty.

In order to prove this charge against the petitioner, the evidence of an Officer, who had purportedly recorded the statement of the Truck Driver and the persons in whose presence such statements were recorded, was adduced in evidence. The Truck Driver was not produced. Thus, the findings of guilt against the petitioner was recorded on the basis of hearsay evidence of the senior officials and the witnesses and on the surmise that such hearsay evidence confirms that the Truck had entered into the Factory Premises through the Gate where the petitioner was posted on duty. Admittedly, there was no direct evidence to affirm that the Truck had actually entered through the Gate where the petitioner was posted on duty. The purported evidence collected in course of the "Preliminary Enquiry", could not have been treated as sufficient evidence in the disciplinary proceedings.

In the case of Central Bank of India Ltd. Vs. Prakash Chand Jain, the Supreme Court has held as follows:

...It is in this connection that importance attaches to the views expressed by this Court in the cases cited above, where it was pointed out that a finding of a Domestic Tribunal may be perverse, if it is not supported by any legal evidence. It is true that, in numerous cases, it has been held that Domestic Tribunals, like an Enquiry Officer are not bound by the Technical Rules about evidence contained in the Indian Evidence Act; but it has nowhere been laid down that even substantive Rules, which would form part of principles of natural justice, also can be ignored by the Domestic Tribunals. The principle that a fact sought to be proved must be supported by statements made in the presence of the persons against whom the Enquiry is held and that statements made behind the back of the person charged are not to be treated as substantive evidence, is one of the basis principles, which cannot be ignored on the mere ground that domestic tribunals are not bound by the technical rules of procedure contained in the Evidence Act.

As indicated above, the findings of guilt against the petitioner, has been recorded only on the basis of some statements made by the Truck Driver, which was recorded behind the back of the petitioner. This, in itself, would confirm that the findings are perverse and has been recorded by ignoring the principles of natural justice.

The second leg of argument on the basis of which, the petitioner would want to invoke the writ jurisdiction of this Court, is that the domestic enquiry was in itself bad in as much as, it was against the procedure laid down under Rule 36 of the Central Industrial Security Forces Rules. The procedure, according to the petitioner, does not permit a de novo enquiry.

Admittedly, that the domestic enquiry against the petitioner was initiated by appointing one officer, namely Mr. D. Oraon as the Enquiry Officer. He had examined as many as three witnesses and thereafter, the Enquiry officer was replaced by another Officer, on the ground that the former Officer did not conduct the enquiry according to the Rules and the later Officer was directed to conduct a de novo enquiry.

Rule 36 of the C.I.S.F. Rules, 2001 lays down the procedure for imposing major penalties and the manner in which the enquiry has to be held against the delinquent member of the Force. On reading the entire procedure, and the manner in which the Enquiry is to be held, it would be manifest that upon initiating a disciplinary proceedings, the Officer appointed to conduct the Enquiry, is called upon to arrive at his finding as to whether the delinquent Officer is guilty of the charges levelled against him. The provisions of Rule 36 of the Rules do not provide for conducting a de novo enquiry against the employee. In the case of K.R. Deb (Supra), the Supreme Court while considering a similar Rule 15 as contained in the Central Civil Services (Classification, Control & Appeal) Rules, 1957, has held that "there is no provision in Rule 15 for completely setting aside previous inquiries on the ground that the report of the Inquiring Officer or Officers does not appeal to the Disciplinary authority."

In a more recent case in the case of Kanailal Bera (Supra), the Supreme Court while considering a similar Rule 27 as contained in the Central Reserved Police Force Rules, has held as follows:

...Rule 27 of the C.R.P.F. Rules, 1955, inter alia, lays down the procedure for conducting a departmental enquiry. Once a disciplinary proceeding has been initiated, the same must be brought to its logical end meaning thereby that a finding is required to be arrived at as to whether the delinquent Officer is guilty of the charges, levelled against him or not. In a given situation, further evidences may be directed to be adduced but the same would not mean that despite holding the delinquent officer to be partially guilty of the charges, levelled against him, another enquiry would be directed to be initiated on the selfsame charges, which could not be proved in the first enquiry.

The judgment of the Punjab & Haryana High Court in the case of State of Punjab v. Harjinder Singh (Supra), relied upon by the learned Counsel for the Respondent, appears on facts, to be contrary to the ratio decided by the Supreme Court in the K.R. Deb''s Case (Supra) and later, in the Kanailal Bera''s Case (Supra). Though the judgment in the case of State of Punjab v. Harjinder Singh (Supra) refers to the ratio decided in the K. R. Deb''s case (Supra) and in the case of Kanailal Bera''s Case (Supra), but has distinguished the judgments of the Supreme Court on the ground that the delinquent employee did not raise any objection with regard to the de novo enquiry and since, such objection was not taken earlier, it would be deemed not to have been made.

In K.R. Deb''s Case and also in the case of Kanailal Bera''s Case (Supra), the issue of de novo enquiry was raised for the first time before the Supreme Court and the apex Court after entertaining the plea, has recorded its observation, holding that the guilt recorded against the delinquent employee on the basis of de novo enquiry is against the procedural law and cannot be sustained. I would therefore, prefer to the judgment of the Supreme Court in the case of Kanailal Bera (Supra). The ratio decided in K.R. Deb''s case (Supra) and in Kanailal Bera''s case (Supra) applies to the case of the petitioner also. The findings recorded against the petitioner in the de novo enquiry has therefore to be held as contrary to the procedure as laid down in the Rules. The objection as raised by the Respondents against the maintainability of this writ application and against the judicial review of the findings recorded in the domestic enquiry, is therefore, over ruled. While conducting departmental proceedings, the enquiry officer functions as a quasi-judicial body. The findings of guilt recorded against the petitioner in the departmental proceedings, which is based on no legal evidence, is certainly perverse. The impugned order of the Disciplinary Authority (Annexure-13) is therefore hereby quashed. For the same reasons, the impugned order of the appellate authority and that of the Revisional Authority are also bad as having been passed without application of judicial mind and the same are quashed.

In the light of the findings on the above issues, I do not feel inclined to go into the issue as to whether the charges against the petitioner, at best indicate negligence simplicitor and whether the punishment of dismissal from service should be considered as disproportionate to the charge.

In the result, this writ application is allowed. The petitioner shall be entitled to reinstatement in service. However, in absence of any specific pleading as to whether the petitioner during the period of his suspension and subsequent to the date of his dismissal from service, was not gainfully employed elsewhere, I direct that upon his reinstatement in service, he shall be entitled to 50 per cent of the back wages.