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Judgment
Sujoy Paul, J.—1. The petitioner has invoked the jurisdiction of this Court under Article 226 of the Constitution with a prayer to set aside the punishment order, appellate order and the order dated 20.12.2013 whereby his representation is rejected by the competent authority.
Draped in brevity, the relevant facts are that the petitioner was served with a charge-sheet dated 03.02.2012 (Annexure-P/2). The petitioner filed his reply and denied the allegations in toto. The department was not satisfied with petitioner''s reply and, therefore, a domestic inquiry was instituted against him. The Inquiry Officer, after recording the evidence of parties, submitted his report and found the charge as proved. In turn, after giving an opportunity to the petitioner, the Disciplinary Authority passed the impugned order dated 03.08.2012 (Annexure-P/7) and inflicted the punishment of compulsory retirement on the petitioner. The petitioner''s appeal and mercy appeal went in vain. All the authorities rejected the appeals preferred by the petitioner.
Shri K.N. Pathia, learned counsel for the petitioner contended that for the same set of allegations, the petitioner was subjected to a criminal case. In a Special Case No. 09/2012 (Lokayukta), the petitioner was made accused. The said case was decided on 18.07.2013 (Annexure-P/11). The prosecution could not establish the allegations and, therefore, the petitioner was exonerated on merits. At this stage, the petitioner filed Writ Petition No. 15078/2013. It was argued that since the petitioner stood acquitted in the criminal case, which was founded upon the same set of allegations/facts, the departmental authorities be directed to decide his representation. This limited request of the petitioner was accepted by this Court. Accordingly, Writ Petition No. 15078/2013 was disposed of on 20.09.2013 with the direction to the competent authority to consider and decide the pending representation of the petitioner dated 05.08.2013. In obedience of this order, the petitioner submitted the representation before the competent authority. In turn, the said authority passed the impugned order dated 20.12.2013 (Annexure-P/17) and rejected the aforesaid representation of the petitioner.
Criticizing this order, the learned counsel for the petitioner advanced four fold contentions. Firstly, it is urged that the complainant - Hakim Singh did not enter the witness box in the domestic inquiry. In absence thereto, the allegations cannot be said to be proved against the petitioner. Secondly, it is urged that the Disciplinary Authority, while imposing the original punishment of compulsory retirement, had taken into account the pendency of criminal case. Hence, this was a relevant consideration on the strength of which the petitioner was punished. Thirdly, it is argued that since the petitioner stood exonerated on merits in the said special case (Lokayukta), there is no justification in upholding the departmental punishment. Lastly, it is urged that the petitioner was subjected to discrimination. The similarly situated employees were given lessor punishment. Reliance is placed on para 5.14 of the petition. In support of this, Shri Pethia relied on 2013 (137) FLR 239 (Rajendra Yadav Vs. State of M.P. and others).
Per contra, Shri Puneet Shroti, learned P.L. supported the said action. He relied on various paragraphs of the return. He submits that the allegations in the inquiry and in the criminal case were different. The degree/standard of proof required in domestic inquiry and criminal case are totally different. He submits that the punishment is not harsh/excessive.
The parties confined their arguments to the extent indicated hereinabove.
I have heard learned counsel for the parties at length and perused the record.
Before dealing with the rival contentions, it is apt to reproduce the relevant portion of the charge-sheet which reads as under:
In support of the said charge, Prakash Vaskale Chowki In-charge, Head Constable Nandkishore Choubey, and SDO(P) S.S. Sikarwar entered the witness box. They deposed against the petitioner. The petitioner was permitted by the Inquiry Officer to cross-examine them. Thereafter, the Inquiry Officer prepared a detailed report wherein he properly marshalled the evidence of the parties. He assigned cogent reasons in support of conclusion drawn. The Inquiry Officer categorically recorded that delinquent employee has not effectively cross-examined the prosecution witness and the prosecution was able to establish the charge.
The Disciplinary Authority passed a detailed order. The Appellate Authority also rejected the appeal by assigning adequate reasons. Thus, I do not find any procedural flaw or violation of principles of natural justice on the part of the Inquiry Officer, Disciplinary Authority and the Appellate Authority.
The scope of interference in cases of departmental enquiry is limited. This Court is not obliged to act as an Appellate Authority to reweigh/re-appreciate the evidence as an Appellate Authority. If there is some evidence to bring the charge home, no interference is warranted. Punishment can be interfered with only if it is shockingly disproportionate.
A plain reading of the charge shows that the basic allegations against the petitioner is that he has not acted on the complaint against Hakim Singh with quite promptitude. This allegations of dereliction of duty were made against the petitioner whereas issue No. 1 of criminal case makes it clear that basic question before the Court was whether the petitioner has demanded and accepted the amount of bribe from Hakim Singh (complainant). The competent authority by impugned order Annexure-P/17 opined that the allegations in the departmental inquiry and in the criminal case are different. In the present case, the prosecution witnesses categorically deposed against the petitioner. They have narrated the incident of dereliction of duty on the part of the petitioner. The petitioner was unable to effectively cross-examine them and demolish the case of the prosecution. The Apex Court in 1997 (2) SCC 491 (State of Haryana and another Vs. Rattan Singh) held as under:
"It is well settled that in a domestic inquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and administrative tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case law and other authorities by counsel on both sides."
[Emphasis supplied]
It was further held that:-
"the essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The ''residuum'' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. We find, in this case, that the evidence of Chamanlal, Inspector of the flying squad, is some evidence which has relevance to the charge levelled against the respondent. Therefore, we are unable to hold that the order is invalid on that ground."
If the present case is examined as per the acid test laid down by Supreme Curt in Ratan Singh (supra), it will be clear that even the hearsay evidence which has thread relation with the allegations is permissible in domestic inquiry. Courts cannot be allergic to hearsay evidence if prosecution is able to establish its nexus and credibility. Apart from this, if there is some evidence, no interference is required. Thus, in my view, even if the complainant Hakim Singh did not enter the witness box, it will not vitiate the departmental inquiry. There is sufficient evidence against the petitioner which establishes misconduct. Thus, first point raised by Shri Pethia must be decided against the petitioner.
No doubt, in the criminal case, the petitioner was exonerated. The Disciplinary Authority also referred about the pendency of the criminal case in his punishment order dated 03.08.2012. However, a careful reading of punishment order dated 03.08.2012 shows that it is only a passing reference. The punishment is not inflicted merely because the petitioner is facing a criminal trial. Putting it differently, the operative reason for inflicting punishment is not the pendency of a criminal case. The punishment is inflicted on the basis of findings of Inquiry Officer. Thus, this point raised by Shri Petheia also cannot cut any ice.
The petitioner is exonerated by order dated dated 18.07.2013. A minute reading of this judgment shows that P.W. 1-Hakim Singh had turned hostile. Hence, the Court below proceeded against him, which is clear from para 22 of the judgment. The question is whether on the basis of this judgment, departmental punishment can be set aside. This point is no more res integra. In , 2011 (9) SCC 94 (Samar Bahadur Singh Vs. State of Uttar Pradesh and others), the Apex Court held that acquittal in criminal case has no bearing or relevance to departmental proceedings as standard of proof in both the cases is totally different. In a criminal proceedings, prosecution has to prove its case beyond reasonable doubt whereas in departmental proceedings, the department has to prove its case only on preponderance of probabilities. In the said case, the delinquent employee was a Constable. The witnesses deposed against him in the inquiry. Their statements so recorded by the Inquiry Officer went unrebutted because delinquent employee did not participate in the inquiry. In the present case, although the petitioner participated in the inquiry could not cross-examine and demolish the case of the prosecution. In Para 8 of the said judgment, the Apex court held that the petitioner is a Constable and belongs to disciplinary force. The member of such a force is required to maintain discipline and to act in a befitting manner in public. Hence, punishment of dismissal was not interfered with. In the present case also, the petitioner is a member of disciplined force. The prosecution was able to establish the allegations of dereliction of duty. Hence, acquittal in criminal case has no bearing in the domestic inquiry. Apart from this, I find force in the argument of of Shri Shroti, P.L. that allegations in the inquiry and in criminal case are different. In the departmental inquiry, the allegations was regarding dereliction of duty whereas in the criminal case, the allegations were regarding demand and acceptance of bribe from the complainant. The ancillary point is whether such an acquittal of the petitioner can be treated to be an acquittal on merits. The curtains on this aspect were drawn by Supreme Court in , 2013 (1) SCC 598 (Deputy Inspector General of Police and another Vs. S. Samuthiram). The Apex Court held that mere acquittal of an employee by a criminal Court has no impact on the disciplinary proceedings initiated by the department. If the accused is exonerated due to the fact that prosecution witnesses have turned hostile and other witnesses were not examined, it cannot be said that accused is honourably acquitted (Para 23 and 26).
In this view of the matter, in my judgment, the competent authority has rightly held that acquittal of the petitioner cannot have any impact on the departmental punishment, which is founded upon the findings of the Inquiry Officer. In view of the established charge, I am also unable to hold that the punishment is disproportionate or attracts Wednesbury Principles.
The last contention of the petitioner is about discrimination of punishment. It is seen that the petitioner has not raised this point before the departmental authorities. For the first time, in Para 5.14 of the petition, it is averred that similarly situated persons were awarded lessor punishment. However, in support of these averments, the petitioner has not filed charge-sheet, Inquiry Officer''s report and punishment orders of such similarly situated employees. In absence thereto, it cannot be held that the petitioner was given any step motherly treatment or punishment against him was discriminatory in nature. The burden of proof that charge against the petitioner was exactly same qua other employees with whom parity was sought for, was on the shoulders of the petitioner. The petitioner has miserably failed to establish the said aspect. Hence, I am unable to hold that the petitioner was subjected to any discrimination in the matter of imposition of punishment.
On the basis of foregoing analysis, in my view, no interference is warranted in the present matter. Consequently, the petition fails and is hereby dismissed. No cost.