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Judgment
P. Sathasivam, J.—Aggrieved by the orders of the respondents dated 16.6.2000, 27.11.2000 and 31.3.2001, the petitioner has filed the
above writ petition to quash those orders and to direct the respondents to reinstate him in service with backwages, continuity of service and all
other attendant benefits.
The petitioner, B.Padmaiah, Constable in Central Industrial Security Force (in short, C.I.S.F.) Unit, M.R.L. Manali was dealt with under Rule
34 of the Central Industrial Security Force Rules, 1969, (in short, C.I.S.F. Rules) on the charges mentioned in the Article of Charge, which reads
as follows:
Article of Charge-I
Gross negligence and dereliction of duty in that CISF No. 834950228 Constable B. Padmaiah of CISF Unit MRL, Manali, detailed for duty at
N.T.A. Patrolling in OTA Plant of MRL in ""A"" shift duty on 18.02.98, indulged in illegal gratification and collected money from Supervisor for
loading grass at grass loading point.
Statement Of Imputation Of Misconduct And Misbehaviour In Respect Of The Article Of Charge Framed Against No. 834050228 Constable B.
Padmaiah Of Cisf Unit Mrl, Manali, Chennai 600 068.
ARTICLE-I
That No. 834050228 Constable B. Padmaiah of CISF Unit MRL Manali was detailed for ''A'' shift duty from 0500 hrs to 1300 hrs at N.T.A.
Patrolling in OTA plant. The company Commander A.P. Velu of this Unit had received an information at about 11.30 hrs from Shri Ravichandran
Supervisor, Rajeshwari Contractors that one CISF sentry who was performing duty at N.T.A. PTL in OTA was demanding money from him for
grass loading point. On receiving the information, the Company Commander along with SI/EXE S.P. Muthu In charge, Crime and Int Section went
to OTA where Shri Ravichandran was present. The Company Commander advised him to give the Constable 02 (Two) particular currencies of
10 rupees denomination after putting identification marks on them. They waited at the OTA gate and Shri Ravichandran went to the CISF sentry at
the grass loading point and handed him over the money which the sentry was demanding. The supervisor Shri Ravichandran came back along with
the grass load at the OTA gate and then they proceeded to the grass loading point but they found the grass loading point sentry CISF No.
834050228 Constable B. Padmaiah at the crude loading point and asked crude point sentry CISF No. 762310778 HC/GD Dan Ram to search
CISF No. 834050228 Constable B. Padmaiah.
Upon Searching Constable B. Padmaiah the two currency notes bearing No. 55L JJ 3716 51B 724192 which had identification marks as put by
Inspector/Exe A.P. Velu were recovered from him. The identification of the notes was done by HC/GD Dan Ram in presence of No. 884495602
Constable T. Nithiyanantham. Such activity on the part of Constable B. Padmaiah amounts to gross negligence and dereliction of duty and hence
the charge.
Since the petitioners explanation was not acceptable, enquiry was ordered to go into the said charge. Though the petitioner participated in the
enquiry, the defence assistance was not provided. In the enquiry proceedings, four prosecution witnesses were examined and five Exhibits were
marked. The report of the Deputy Commandant was marked as Court Exhibit-1. On examination of the prosecution witnesses and the documents,
the Enquiry Officer submitted his report holding that the charges leveled against the petitioner were proved. The disciplinary authority, Group
Commandant, accepted the report of the Enquiry Officer and imposed punishment of removal from service by order dated 16.6.2000. The
petitioner preferred an appeal to the Deputy Inspector General, 4th respondent herein on 1.7.2000. The appellate authority, by order dated
27.11.2000, rejected his appeal. Thereafter, the petitioner preferred a revision petition to the Inspector General, 3rd respondent herein, on
5.12.2000, who, rejected the revision petition by order dated 31.3.2001. Hence, the present writ petition before this Court.
Heard Mr.N.G.R.Prasad, learned Counsel for the petitioner and Mr.K.Ramakrishna Reddy, Additional Central Government Standing Counsel
for the respondents.
Mr.N.G.R.Prasad, learned Counsel for the petitioner, after taking us through the enquiry proceedings, the orders of the disciplinary authority,
the appellate authority and the revisional authority, submitted that the petitioner was not provided with an adequate opportunity to put forth his
defence before the Enquiry Officer. He further contended that inasmuch as the material witness was not examined, other witnesses being the
persons working in CISF, the ultimate conclusion of the Enquiry Officer as well as the disciplinary authority against the petitioner cannot be
sustained. According to him, the non-examination of the material witness, viz., Ravichandran, who is the complainant, and non-supply of copy of
the report to the Deputy Commandant Ex.C-1 which was very much relied on by the Enquiry Officer amounts to violation of the principles of
natural justice. He also pointed out that in other cases, in respect of similar charges of illegal gratification, the very same respondents had awarded
lesser punishment than that of removal from service.
On the other hand, Mr.K.Ramakrishna Reddy, learned Additional Central Government Standing Counsel appearing for the respondents,
submitted that it is not a case of no evidence and de hors the complainant Ravichandran and Dan Ram who retracted before the Enquiry Officer,
there were acceptable material in the form of oral and documentary evidence and the same were rightly considered and accepted by the Enquiry
Officer as well as the disciplinary authority. According to him, there is no valid ground for interference by this Court.
We have carefully considered all the relevant materials and the rival contentions.
We have already extracted the Article of charge as well as the Statement of Imputation. The charge against the petitioner is that he was indulging
in illegal gratification and collection of money from one Ravichandran, Supervisor of Rajeshwari Contractors. The Statement of Imputation which
we have extracted above makes it clear that only at the instance of the said Ravichandran, Supervisor of Rajeshwari Contractors the complaint
was made stating that the petitioner demanded money and the said Ravichandran paid the same and on the basis of the said complaint, charge was
leveled against the petitioner and proceeded with further. Though the Department has examined as many as four witnesses, admittedly, the said
Ravichandran, Supervisor of Rajeshwari Contractors was not examined. There is no material to show whether any attempt was made summoning
him to appear before the Enquiry Officer. In such circumstances, Mr.N.G.R.Prasad, learned Counsel for the petitioner strongly contended that the
said Ravichandran, being a material witness to the charge, and failure to examine him to substantiate his alleged complaint is fatal to the entire
proceedings. In support of the above contention, he relied on the decision of the Supreme Court in Hardwari Lal Vs. State of U.P. and Others, .
In the case before the Supreme Court (Hardwari Lal''s case cited supra), the appellant was a Constable in the Police Department in the State of
Uttar Pradesh and on the charge that during the night on 16/17.1.1991, under the influence of liquor, he hurled abuses in the police station at
Constable Prakash Chandra Pandey, a departmental enquiry was initiated against him and on the basis of the enquiry report, the disciplinary
authority passed an order of dismissal which was challenged by the appellant before the Public Service Tribunal, which dismissed his case and the
appellant further carried the matter to the High Court by way of writ petition. The ground taken by the Constable before the Tribunal that copies of
certain documents like, preliminary enquiry report and the statement of the complainant made to the Inspector Virender Singh were not supplied to
him, was rejected by the Tribunal on the basis that the Constable having participated in the preliminary enquiry and inspected the entire records
and documents, he should have asked for copies of documents now sought for. Similarly the contention that the non-examination of Virender
Singh, who was the complainant in the case and the witness Jagdish Ram, who were allegedly witnessed the incident would be fatal to the
proceedings was rejected by the Tribunal on the basis that the examination of Virender Singh was only formal to prove the report dated 17.7.1991
and no prejudice would be caused to the appellant due to such non-examination. The Tribunal also took the view that the evidence of Jagdish Ram
was also not important because he had merely accompanied the Constable during medical examination. The High Court affirmed the above
findings of the Tribunal and ultimately concluded that apart from the evidence of these two witnesses, there were sufficient material on record to
prove the incident and thus, there was no ground to interfere with the order made by the Tribunal and dismissed the writ petition and the same was
challenged before the Supreme Court. Before the Supreme Court, the sole ground urged was as to the non-observance of the principles of natural
justice by not examining the complainant Shri Virender Singh, and the witness Jagdish Ram. The Supreme Court accepting the above contention,
concluded that,
...The Tribunal as well as the High Court have brushed aside the grievance made by the appellant that the non-examination of those two persons
has prejudiced his case. Examination of these two witnesses would have revealed as to whether the complaint made by Virender Singh was
correct or not and to establish that he was the best person to speak to its veracity. So also, Jagdish Ram, who had accompanied the appellant to
the hospital for medical examination, would have been an important witness to prove the state or the condition of the appellant. We do not think
the Tribunal and the High Court were justified in thinking that non-examination of these two persons could not be material. In these circumstances,
we are of the view that the High Court and the Tribunal erred in not attaching importance to this contention of the appellant.
Highlighting the evidence of other witnesses, the learned Additional Advocate General appearing for the State of Uttar Pradesh submitted
before the Supreme Court that there were other materials which were sufficient to come to the conclusion in one way or the other. Rejecting the
said contention, the Supreme Court held that,
... But while appreciating the evidence on record the impact of the testimony of the complainant cannot be visualised. Similarly, the evidence of
Jagdish Ram would also bear upon the state of inebriation, if any, of the appellant.
After holding so. Their Lordships concluded that,
In the circumstances, we are satisfied that there was no proper enquiry held by the authorities and on this short ground we quash the order of
dismissal passed against the appellant by setting aside the order made by the High Court affirming the order of the Tribunal and direct that the
appellant be reinstated in service....
The principle laid down therein is squarely applicable to the case on hand since the witness Ravichandran, Supervisor who is said to have made the
complaint was not examined. As observed by the Supreme Court, failure to examine the material witness amounts to violation of principles of
natural justice. Further, the Department had not taken any step to examine the said Ravichandran and there is no explanation for the same. In such
circumstances, we are of the view that the evidence of Ravichandran is material to prove whether he made any such complaint against the
petitioner and further more, he is the best person to speak about the veracity of the said complaint.
It is also relevant to note that the enquiry records revealed that there is no written complaint by the said Ravichandran. At this juncture, the
following questions and answers by P.W.2 Inspector A.P. Velu are relevant.
Qn.: Who was the complainant?
Ans: Supervisor of Rajeshwari Contractors.
Qn.: How was the complaint lodged?
Ans: By telephone.
Qn.: Did the Supervisor of Rajeshwari Contractors give anything in writing regarding the incident?
Ans: Yes, he gave me written complaint.
But, the above statement cannot be accepted as correct, because on the question, Was the complaint a written one?, another witness, by name,
S.P. Muthu, answered No. He further mentioned that the complaint in the form of telephone call was received by the Inspector A.P. Velu. In the
light of the inconsistent statement and of the fact that there is no written complaint, as observed by the Supreme Court in Hardwari Lals case (cited
supra), the evidence of the said Ravichandran is relevant.
Mr.N.G.R.Prasad, learned Counsel further contended that in the absence of evidence of Ravichandran before the Enquiry Officer, his earlier
statement said to have been made during the preliminary enquiry cannot be relied upon. In support of the above contention, he relied on the
decision of the Apex Court in Kuldeep Singh Vs. The Commissioner of Police and Others, . In the case before the Supreme Court, the non-
production of complaint was sought to be justified with reference to Rule 16(3) of the Delhi Police (F&A) Rules, 1980. The Supreme Court, after
finding that the complaint was not before the Court, but the statement said to have been made earlier was placed before the Enquiry Officer,
concluded that the absence of original complaint, would indicate that there was, in fact, no complaint in existence. After saying so. Their Lordships
held that,
Apart from the above, Rule 16(3) has to be considered in the light of the provisions contained in Article 311(2) of the Constitution to find out
whether it purports to provide reasonable opportunity of hearing to the delinquent. Reasonable opportunity contemplated by Article 311(2) means
Hearing"" in accordance with the principles of natural justice under which one of the basic requirements is that all the witnesses in the departmental
enquiry shall be examined in the presence of the delinquent who shall be given an opportunity to cross-examine them. Where a statement
previously made by a witness, either during the course of preliminary enquiry or investigation, is proposed to be brought on record in the
departmental proceedings, the law as laid down by this Court is that a copy of that statement should first be supplied to the delinquent, who should
thereafter be given an opportunity to cross-examine that witness.
In the case on hand, the Enquiry Officer heavily relied on the statement of Ravichandran, Supervisor of Rajeshwari Contractors. The translated
copy of the said statement which is available at page No. 77 of the typed-set of papers shows that on 18.2.1998 when he was loading dry grass in
his contractors truck No. TMV 7925 at ETP II area, the Constable B.Padmaiah who was on loading witness duty demanded money from him.
According to the said Ravichandran, he declined to pay and conveyed the matter to CISF Officer. At the instance of Inspector A.P. Velu and the
Sub-Inspector S.P. Muthu, he took two ten rupee notes from them and put their initials and gave them to the constable B.Padmaiah who
demanded money. As observed in the decisions referred to above, if the above statement is to be relied on, the author of the statement, viz.,
Ravichandran has to be examined and then only, the delinquent would get an opportunity to cross-examine as to the veracity of the statement.
Marking a statement not through the author of the statement violates the principles of natural justice, as the delinquent loses the valuable
opportunity to cross-examine the author to test the veracity of the statement said to have been made by him. This is clear from Para-32 of the
judgment in Kuldeep Singh case, (cited supra).
Apart from the above infirmities, learned Counsel for the petitioner also brought to our notice that the Enquiry Officer heavily relied on the
special report of the Deputy Commandant, CISF Unit, MRL, Manali, Chennai-68, and according to him, the petitioner was not put on notice of
the report or supplied with a copy of the same. Inasmuch as the petitioner was not furnished with a copy of the said report, it is impermissible for
the Enquiry Officer to rely on the same and arrive at a conclusion against the petitioner.
The other infirmity pointed out by the learned Counsel for the petitioner is that one Dan Ram who was performing General Shift Duty was
examined as P.W.4,who, in his evidence has stated that on 18.2.1993 at about 12.45 hours when he was performing General Shift Duty at Crude
weigh bridge in E.T.P. area, the Inspector A.P. Velu and the Sub-Inspector S.P. Muthu came to his duty post along with Constable B.Padmaiah
and the Inspector A.P. Velu ordered him to conduct body search on the said Constable B.Padmaiah. According to him, pursuant to the said
direction, he carried out the body search on the constable B.Padmaiah and found some canteen coupons in the left side pant pocket. On a specific
question, Did you see any money in the pocket of Constable B.Padmaiah?, he answered No. It is clear that among the witnesses, P.W.4 Dan Ram
is the prime witness who conducted body search on the Constable B.Padmaiah and emphatically reported that there was no currency note in his
pant pocket. We are of the view that among the witnesses, the statement of P.W.4 who searched the pocket of the petitioner in the presence of
officers is very relevant as to the charge leveled against the petitioner, and in view of his retraction and categorical statement, the Enquiry Officer
ought to have accepted the defence taken by the petitioner. We are conscious of the fact that normally this Court would not interfere with the
finding of fact recorded in the domestic enquiry, but, if the finding of guilty is perverse, it would be amenable to judicial scrutiny. We are also aware
of the settled principle that if a decision is arrived at on the basis of no evidence or evidence on which no reliable and reasonable person would act,
such decision would be perverse.
Mr.K.Ramakrishna Reddy, learned Counsel for the respondents submitted that it is not a case of no evidence to interfere with the conclusion
arrived at by the Enquiry Officer as well as the Disciplinary authority. He heavily relied on the observations/directions of the Supreme Court in
Paras-10 and 11 of the judgment in Govt. of A.P. and Others Vs. Mohd. Narsullah Khan, , which run as follows:
From the finding recorded by the High Court it clearly appears that the High Court reappreciated the evidence as an appellate authority. Apart
from reappreciating the evidence, which is not permissible in law, the High Court also fell in grave error by directing the Government Pleader and
the learned Counsel for the respondent herein to again view the cassettes. It is on record that the inquiry officer relied on the video cassettes
displayed during the inquiry as part of additional evidence. The finding has been clearly recorded by the inquiry officer on the basis of the evidence
adduced by PWs 1,2,3 and 4 during the inquiry.
By now it is a well-established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution
does not act as an appellate authority. Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in
manifest miscarriage of justice or violation of principles of natural justice. Judicial review is not akin to adjudication on merit by reappreciating the
evidence as an appellate authority.
We verified the factual details of the said case. It is seen that the High Court directed the Government Pleader as well as the counsel for the
respondents to review the cassettes which were relied on by the Enquiry Officer as the Enquiry Officer relied on the Video Cassettes displayed
during the enquiry as part of additional evidence. In spite of the clear finding by the Enquiry Officer on the basis of evidence adduced by P.Ws.1 to
4 during the enquiry, the High Court reviewed the very same cassette and arrived at a different conclusion which is held by the Supreme Court as
impermissible. However, the said decision is not helpful to our case for the reasons mentioned in the earlier paragraphs.
The next decision relied on by Mr.Ramakrishna Reddy is the judgment of Supreme Court reported in Canara Bank Vs. V.K. Awasthy, ,
wherein it is held that Court would not interfere with the decision of the Enquiry Officer/Disciplinary Authority unless it is illegal or suffering from
procedural impropriety or irrational, is also not applicable to the facts of the case, as we have already noticed serious lapse in the enquiry, namely
the non-examination of the material witness, retraction of P.W.4, who is said to have searched the pant pocket of the petitioner, etc.
The learned Counsel appearing for the respondents submitted that even though the complainant was not examined at the regular enquiry, in
view of the existence of evidence of other witnesses, the conclusion cannot be faulted with and in support of the same, he relied on the decision of
the Apex Court in Superintendent, Govt. T.B. Sanatorium and Another Vs. J. Srinivasan, , wherein in para-7. Their Lordships held,
...Taking the second ground first, we find that even though the complainant or her husband were not examined at the regular enquiry, there is
other evidence including the evidence of the co-worker and another co-patient upon which the finding recorded against the respondent can be
sustained. The Tribunal could not have gone into the adequacy of evidence. It could interfere only if it is a case of ""no evidence"" and that is not the
case here....
Though in the above decision it was held that it would be possible for the Enquiry Officer to rely on the evidence of other witnesses and that the
conclusion arrived at by him could not be termed as being based on no evidence, in the case on hand, as observed earlier, the charge proceed that
the petitioner demanded gratification and the same was acceded to and paid by Ravichandran, the complainant. On the facts of the case, the
evidence of Ravichandran, who was not examined, is paramount and apart from that, among other witnesses, P.W.4, who is the prime witness,
retracted from his earlier stand and he did not support the charge, and hence, we are of the view that the above said decision is also not helpful to
the respondents. For the same reasons, the other decision, viz., State of T.N. Vs. M.A. Waheed Khan, is also not applicable to the case on hand.
It is useful to mention here the observation of the Supreme Court reported in Delhi Cloth and General Mills Co. Ltd. v. Ludh Budh Singh
(1972) SCC 1 LLJ 180, wherein Their Lordships held that when an allegation of misconduct is leveled against a person, it is the duty of the person
making the allegation to establish the same and not for the accused to adduce evidence to the effect that he is not guilty. It is seen from the records
that though the petitioners defence assistance was initially accepted by the Department, the person who had given the defence assistance was
subsequently transferred to other place and hence, he did not attend the enquiry proceedings. The fact remains that the entire enquiry was
defended by the petitioner himself without defence assistance. We have also pointed out that copy of the report of the Deputy Commandant was
not furnished to the petitioner, though the Enquiry Officer heavily relied on it.
Apart from the above infirmities, learned Counsel for the petitioner has also brought to our notice that in respect of similar charge of
gratification and receipt of money, the very same disciplinary authority/appellate authority had taken lenient view and awarded lesser punishment
and those orders are available in the typed-set of papers. As rightly argued by the learned Counsel for the respondents, the said aspect is not a
relevant factor as the personnel working in CISF should maintain strict discipline, but the fact remains that the respondents have taken different
yardsticks and their decision varies from person to person even in respect of corruption charge.
As rightly pointed out by the learned Counsel for the petitioner, even in the enqniry the Enquiry Officer proceeded with a point whether the
constable B.Padmaiah demanded money from Ravichandran, Supervisor of Rajeshwari Contractors for supervising the grass loading in OTA area.
In such circumstances, as rightly pointed out by the learned Counsel for the petitioner in the light of the decision of the Supreme Court in Hardwari
Lals case (cited supra), non-examination of the material witness, viz., Ravichandran has prejudiced the petitioner. We are also satisfied that the
infirmities pointed out would undoubtedly amount to violation of principles of natural justice. Therefore, the impugned orders are liable to be set
aside. The failure to examine the complainant whose complaint is the basis for the disciplinary action against the petitioner and the failure to provide
an opportunity to the petitioner to test the veracity of the complaint made against him has resulted in the deprivation of right of the petitioner
amounting to gross violation of principles of natural justice and thereby, making the entire disciplinary proceedings vitiated. In view of the specific
statement of P.W.4 Dan Ram, who conducted the body search of the petitioner that no money was found in his pocket and he took canteen
coupons from his pocket, the contrary conclusion arrived at by the Enquiry Officer and accepted by the disciplinary authority cannot be sustained.
We are also satisfied that the failure to provide defence assistance to the petitioner is a violation of the provisions of Rule 34 of CISF Rules,
besides the violation of the principles of natural justice. All these material and relevant aspects have not been properly considered by the appellate
and revisional authorities.
Under these circumstances, the impugned orders of the respondents dated 16.6.2000, 27.11.2000 and 31.3.2001 are quashed and there shall be
a direction to the respondents to reinstate the petitioner in service forthwith with backwages, continuity of service and all other attendant benefits.
The writ petition is allowed. No costs.