Monika Dutta vs Union of India and Others

Pramath Patnaik, J.—In the instant writ application the petitioner has, inter alia, prayed for issuance of a writ of certiorari for quashing of the order dated 09.03.2010 issued by respondent No. 4 removing him from services and for quashing of order dated 29.04.2010 passed by the appellate authority (respondent No. 3), confirming the order passed by the disciplinary authority and also for quashing of the order dated 14.07.2010 issued by the respondent No. 2, being the revision order upholding the order passed by the disciplinary authority as well as the appellate authority.

The facts, as averred in the writ application, in a nutshell is that while the petitioner continuing as constable in CISF Unit, BCCL, Dhanbad, the petitioner was served with charge sheet on 22.09.2009 with the following charges of misconduct:-

(i) That she had maintained illicit relationship with Constable H.S. Sandhu, a Constable, CISF Unit, BCCL, Dhanbad.

(ii) That she called the aforesaid H.S. Sandhu to her quarter in the night of 25.08.2009 and 26.08.2009 un-authorizedly.

(iii) That she was habituated to drink liquor in Barrack premises.

(iv) That she deserted the Unit from 03.09.2009 to 09.09.2009 without obtaining permission from any authority and submitted joining on 10.09.2009.

In pursuance to the charge, the petitioner submitted her reply which was not considered and an enquiry was ordered to conduct against her. After conclusion of the enquiry, the inquiry officer held charge No. 1 and 3 were not proved against the petitioner though, charge Nos. 2 and 4 were proved against the petitioner as per enquiry report, vide annexure-1 to the writ petition. The disciplinary authority did not agree with the finding of the inquiry officer with regard to exoneration of the petitioner from charge Nos. 1 and 3, and asked the petitioner to show cause as to why it not be held that the charges on all counts are proved against her and held the petitioner guilty of all the four counts and directed for removal from services and further held that she would not be entitled to anything more than already paid to her during suspension, vide annexure-2 to the writ petition. Being aggrieved by the order of the disciplinary authority, the petitioner preferred an appeal before the appellate authority who dismissed the appeal and upheld the order of punishment vide order dated 29.04.2010 vide annexure-3 to the writ petition. Against the order of the appellate authority, the petitioner filed revision before the respondent No. 2 who vide order dated 14.07.2010 dismissed the revision vide annexure-4 to the writ petition.

Being aggrieved by the impugned order of removal from services vide annexure-2 to the writ petition and the order of the appellate authority as well as the revisional authority vide annexures-3 and 4 to the writ petition, the petitioner having no other efficacious, alternative and speedy remedy has approached this Court by invoking extraordinary jurisdiction under Article 226 of the Constitution of India for redressal of the grievances.

Per contra, a counter affidavit has been filed on behalf of the respondents repelling the contentions of the petitioner. In the counter affidavit, it has been inter alia submitted that during preliminary enquiry on 30.10.2009, the petitioner out of four charges denied the Charge No. I, II and III levelled against her and unequivocally accepted the Charge No. IV. The petitioner denied to take any person as defence assistant. During the course of departmental enquiry, the inquiry officer recorded the statements of the prosecution and court witnesses in presence of the petitioner. The petitioner was extended ample opportunity to cross examine the witnesses and she availed the same. After careful consideration of all the materials available in the case file, the enquiry officer found proved the article of charge No. II and IV framed against the petitioner whereas article of charge No. I and III were found not proved. The disciplinary authority being disagreed with the findings of enquiry officer on Charge No. I and III issued disagreement note as per laid down procedure to the petitioner vide office Memorandum No. (1016) dated 12.02.2010 with a direction to submit her written representation against the disagreement note within 15 days on receipt of the same. The petitioner received the disagreement note on 12.02.2010 and submitted her written representation against the same on 26.02.2010 in which she denied the charges levelled against her. The disciplinary authority on the basis of records and statements available, found the Charge Nos. I and III beyond any shadow of doubt. The Disciplinary authority, after considering her representation as well as evidence on record observed that the proved charges are very serious in nature as well as of unbecoming member of the force and hence imposed the punishment of removal from service vide order dated 09.03.2010. It has further been submitted in the counter affidavit that the petitioner filed an appeal before the appellate authority which was considered and rejected being devoid of merit by the appellate order dated 29.04.2010 and also the revision petition has been rejected by the revisional authority vide order dated 14.07.2010. Therefore, the petitioner has been rightly punished by the disciplinary authority for proven misconduct, carelessness and dereliction of duty, as such the writ petition is liable to be dismissed.

Heard Mr. Manish Kumar, learned counsel appearing for the petitioner and Mr. Prashant Vidyarthy (CGC) appearing for the respondents.

Learned counsel for the petitioner has strenuously urged before this Court that the findings of the inquiry officer as well as the disciplinary authority are perverse. The action of disciplinary authority in first disagreeing with the findings of enquiry officer and then proceeding to hold that all charges are proved shows predetermination on his part to hold the petitioner guilty. The second contention advanced by the learned counsel for the petitioner is that statement of witnesses recorded behind the back of the petitioner could not have been relied by the inquiry officer and the disciplinary authority and thereby the principles of natural justice have been violated by the respondents inasmuch as the respondents have relied all past incident to hold the petitioner guilty of charges as leveled in the charge sheet. The third ground as advanced by the learned counsel for the petitioner is that the petitioner at best was guilty of charge No. IV as she had left the campus in view of persistent torture by her husband and the said misconduct was not such as to warrant her removal from service and in that view of the matter the removal of services is highly disproportionate to the charges alleged against her. Learned counsel for the petitioner has further submitted that if totality of circumstances is taken into account the charges against the petitioner are not proved then preponderance of probability of innocence of petitioner is writ large.

Learned counsel for the petitioner in order to fortify his submissions has referred to the decisions of the judgment reported in:

(i) [2006 (6) ADJ 249] (specific paragraphs are 18, 21, 24, 35, 36, 42, 50, 52, 57 & 59)

(ii) [2010] 10 SCC 539 (specific paragraphs are 33 & 34)

(iii) [2007] 1 SCC 338 (specific paragraphs are 9 & 10)

(iv) [2013] 4 JCR 462 (specific paragraph 9)

On the other hand, learned counsel for the respondents apart from controverting the submissions made by the counsel for the petitioner has referred to the decision rendered in the case of Krishna Deo Tiwari Vs. The State of Jharkhand, The Vinoba Bhawe University, The Vice-Chancellor and The BSK College, .

Having heard learned counsel for the respective parties and on perusal of the records, I find that the impugned orders of punishment of removal from services being confirmed by the appellate authority as well as the revisional authority do not call for any interference, in view of the following facts, reasons and judicial pronouncements:

(I) In pursuance to four charges the inquiry officer found the petitioner guilty of two charges. Subsequently, the disciplinary authority with the findings of the inquiry officer and on the question of disagreement note, the petitioner was asked to submit his explanations. On careful consideration of the explanation, the disciplinary authority found the petitioner guilty of the charges. Accordingly, the punishment of removal from services was imposed on the petitioner, which has been duly considered by the appellate as well as the revisional authority and there has been absolutely no procedural irregularity in conducting the disciplinary proceedings.

(II) It is an admitted fact that being an employee of a discipline force serious misconduct like dereliction of duty, indiscipline of lawful orders have been committed by the petitioner which has culminated in infliction of punishment by the disciplinary authority for proven misconduct, carelessness and dereliction of duty.

(III) On perusal of the records, it is quite evident that there has been no procedural irregularity from the initiation of disciplinary proceeding till its culmination as the petitioner has been found guilty of the charges by the enquiry officer. The Hon''ble Apex Court in the case of State of U.P. and Others Vs. Raj Kishore Yadav and Another, at paragraph 4 has held that:

"4........It is a settled law that the High Court has limited scope of interference in the administrative action of the State in exercise of extraordinary jurisdiction under Article 226 of the Constitution of India, and, therefore, the findings recorded by the enquiry officer and the consequent order of punishment of dismissal from service should not be disturbed.........."

The Hon''ble Apex Court further in the case of Krushnakant B. Parmar Vs. Union of India (UOI) and Another, has held that High Court under Article 226 cannot disturb the facts and findings given by the disciplinary authority.

(IV) The Hon''ble Apex Court in the case of Union of India and another Vs. G. Ganayutham (Dead) by LRs., held that in the matter of penalty imposed in a disciplinary case, unless the Court/Tribunal opines in its secondary role, that the administrator was, on the material before him, irrational, the punishment cannot be quashed.

(V) The Hon''ble Apex Court in the case of Apparel Export Promotion Council Vs. A.K. Chopra, in paragraph 22 held as under:

".....The High Court should not have substituted its own discretion for that of the authority. What punishment was required to be imposed, in the facts and circumstances of the case, was a matter which fell exclusively within the jurisdiction of the competent authority and did not warrant any interference by the High Court. The entire approach of the High Court has been faulty. The impugned order of the High Court cannot be sustained on this ground alone.........."

(VI) On perusal of the judgments referred by learned counsel for the petitioner, it appears that they are not applicable in the facts and circumstances of the present case.

As a cumulative effect of the facts, reasons and judicial pronouncements and in view of the discussions made in the foregoing paragraphs, I am of the considered view that it is not a case in which order of penalty has been passed ignoring the relevant materials on record nor the case is based on no evidence. Therefore, the impugned order of punishment of removal from service vide annexure-2 to the writ petition being confirmed by the appellate authority as well as the revisional authority vide annexures-3 and 4 respectively, do not warrant any interference of this Court being devoid of merit.

Accordingly, the writ petition is dismissed being devoid of merit.