Nemi Chand Sharma vs State of M.P. and Others

Sujoy Paul, J.—This petition is directed against the order of dismissal from service in a departmental enquiry. The petitioner was served with a charge sheet on 8.6.2001 wherein two charges were alleged against him. The petitioner denied the charges. The enquiry officer was appointed. The enquiry officer conducted the enquiry and found both the charges as established against the petitioner. The petitioner was afforded with an opportunity to submit representation against the enquiry officer''s report. After taking petitioner''s representation, the disciplinary authority inflicted the punishment of dismissal from service. This order of punishment was affirmed by the appellate authority. This petition challenges both the orders. Shri Alok Katare, learned counsel for the petitioner, submits that a bare perusal of the charge sheet shows that it is based on a preliminary enquiry report. In the preliminary enquiry which was conducted behind the back of the petitioner, the charges were found proved. In the regular departmental enquiry also the enquiry officer has relied on the report of the preliminary enquiry and therefore, the enquiry officer''s report is vitiated. For this he relied on Nirmala J. Jhala Vs. State of Gujarat and Another, . Criticizing the domestic enquiry, Shri Katare further submits that three star prosecution witnesses viz., Balmukund, Megh Singh Gurjar and Tilak Singh did not enter the witness box. In absence of that, charges cannot be established. He further submits that the allegations are based on hearsay evidence and, there is no evidence lead in the enquiry. It is further submitted that the alleged incident took place outside the duty hours and beyond the area where petitioner was posted and, therefore, it does not constitute misconduct. For this preposition, he relied on Glaxo Laboratories (I) Ltd. Vs. Presiding Officer, Labour Court, Meerut and Others, Lastly, by placing reliance on Surendra Prasad Shukla Vs. The State of Jharkhand and Others, it is submitted that petitioner rendered 23 years of service and, therefor, the punishment is extremely disproportionate. It is further submitted that no presenting officer was appointed and the enquiry officer acted as presenting officer which vitiates the enquiry. For this he relied on Ram Prakash Gaya Prashad Vs. State of M.P. and others,

Per contra, Shri Newaskar supported the order and submits that in view of the very serious allegations against the petitioner which are duly proved in a properly conducted enquiry, no interference is warranted. He also relied on the judgment of this Court in W.P. (S) No. 1202/2005 (Badshah Singh Vs. State of M.P. & Others).

I have heard the learned counsel for the parties and perused the record.

The charges against the petitioner are as under:-

Petitioner denied the charges and thereafter the enquiry officer conducted the enquiry. PW-1 Ramesh Chand deposed his statement.

On the basis of aforesaid, it is apt to examine the case of the present petitioner. The petitioner stated that three main witnesses had not entered the witness box and it was duly recorded by the enquiry officer in his finding. However, PW-1 and PW-2 are the witnesses who were present at the time of incident dated 20.7.2001. A microscopic reading of Annexure A-5 and A-6 shows that these witnesses are relevant witnesses who were present at the time of incident. Their submission makes it clear that there is evidence against the petitioner. On the basis of this evidence, I am unable to hold that this is a case of no evidence against the petitioner. The Apex Court in High Court of Judicature at Bombay through its Registrar Vs. Shirish Kumar Rangrao Patil and another, has opined that sufficiency of evidence cannot be a ground to interfere in a domestic enquiry.

So far the allegation that the enquiry officer has taken a burden on himself to act as presenting officer is concerned, I am also not convinced with this argument. Merely because presenting officer is not appointed, enquiry will not be vitiated automatically. One has to establish that the enquiry officer has taken the burden on his shoulders to prove the charges as presenting officer. He cross examined the defence witnesses as a presenting officer and, therefore, acted as a Prosecutor rather than a Judge. There is no material to establish the same. The enquiry officer''s questions were clarificatory and in absence of establishing the aforesaid, it cannot be said that the enquiry is vitiated. Thus, this contention is also rejected.

The petitioner contended that the enquiry officer has based his enquiry entirely on the preliminary enquiry report in which he was not given any opportunity. For this he relied on Nirmala J. Jhala Vs. State of Gujarat and Another, If the enquiry officer''s report is perused, which is running in seven pages, it is crystal clear that the enquiry officer has discussed the documentary evidence and statement of PWs recorded in regular inquiry. PW1''s statement shows that at earlier point of time he submitted a written complaint which was submitted before the department. PW-2 Vijendra Singh entered the witness box and deposed as under:--

The PW/3 also entered the witness box. PW/3 conducted the preliminary enquiry.

Before dealing with the merits of the matter, it is apt to mention that the scope of interference in a departmental enquiry is well defined. This Court is concerned with judicial review of the decision making process and not with the decision. This was the view taken in Apparel Export Promotion Council Vs. A.K. Chopra, If principles of natural justice are violated and such violation results into grave prejudice to the petitioner, interference can be made. Sufficiency of evidence cannot be a ground to interfere in a domestic enquiry. The principle of preponderance of probability is applicable in the domestic enquiry and not the principles of proving the charge beyond reasonable doubt, the principle which is applicable in criminal cases. If there is some evidence, it is sufficient to hold that the employee is guilty. Punishment can be interfered with if it is shockingly disproportionate to the conduct of an employee. Mainly these are the ingredients on which interference can be made. In addition, interference can be made if the allegations mentioned in the charge sheet even on its admission does not constitute a misconduct. In the present case, the finding of inquiry officer is based on the statement of witnesses who deposed their statement in regular enquiry and were permitted to be cross-examined by the petitioner. Thus, I am not impressed with the contention that the whole enquiry report is based on preliminary enquiry report. Thus, this contention is also rejected and the judgment in this regard cited by Shri Katare has no application. In my opinion it is not a case of no evidence.

The last submission is that the punishment is harsh and excessive. The doctrine of proportionality has a definite application. It is not only related with the tenure of the petitioner but has a nexus with the nature of duties which is being performed by him, coupled with the seriousness of the allegations. The charges as produced above shows that the charges are very grave and punishment, in my opinion is commensurate to the misconduct.

The petitioner was a Head Constable and a member of a disciplined police force. The police force is appointed to save the life and dignity of the citizens and not to snatch their dignity. On account of charge No. 1 which is established, it is clear that petitioner''s conduct was highly improper and unbecoming of a police constable. The judgment of Glaxo was considered recently by a Division Bench of this Court in W.A. 763/07 (Union of India and others Vs. Sukhbir Singh Bias). After considering the judgment of Glaxo and other judgments of the Apex Court, this Court opined that if conduct of an employee reflects on the discipline of the establishment, even after the working hours it amounts to misconduct. The D.B. held as under:-- The charge sheet and the evidence clearly shows that the incident is arising out of the employment and it has a nexus with the same. Thus, even if it has taken place after the duty hours, it does constitute a misconduct. In Union of India (UOI) Vs. Ram Kishan, the Apex Court dealt with a case where the police personnel was not in uniform and committed an offence. It was opined that the employee was purporting to act as a police personnel even when he was in plain clothes. Thus, punishment was not interfered with. In Government of Tamil Nadu and others Vs. S. Vel Raj, the Apex Court dealt with the stand of a police personnel where he stated that he was found in a drunken condition but he was in "mufti". It was also the stand of the delinquent employee that he had consumed "arrack". The Apex Court held that in a disciplinary force one has to behave in a disciplined manner and, therefore, the said stand was not accepted and punishment of dismissal was upheld. The same punishment was affirmed by the Supreme Court in (2004) 13 SCC 117 (State of UP and others vs. Harendra Kumar), wherein the allegations were regarding consumption of liquor on duty. In Samar Bahadur Singh Vs. State of U.P. and Others, the Apex Court affirmed the punishment in case of consumption of liquor by a police constable. A Division Bench of this Court in Writ Appeal No. 618/2012 (Ashok Kumar vs. State of MP and others) has taken the same view on 3.12.2012. Considering the aforesaid, it cannot be said that the punishment is harsh or excessive in nature.

On the basis of aforesaid analysis, in my opinion, no case is made out by the petitioner for interference under the discretionary jurisdiction of this Court under Article 226 of the Constitution of India. Petition is bereft of merits and substance and is hereby dismissed. No cost.