Om Prakash Joshi vs State and Others

Pratap Krishna Lohra, J.—By the instant writ petition, the petitioner has assailed the impugned order dt. 17.4.2008 passed by Director General of Police, Rajasthan Jaipur, whereby the Director General of Police, while disagreeing with the findings of the enquiry officer has indicted the petitioner for the misconducts and inflicted on him the penalty of demotion far three years. The undisputed facts are that while working as Chief Inspector at Police Station, Naya Sahar (Bikaner) in the year 2004-05, a complaint was received against the petitioner that he is demanding bribe from the complainant Subhash Swami for extending him some favour in a criminal case. On receiving the complaint, the Anti Corruption Bureau, Bikaner organized a trap and requisite arrangements were made for the same on 14.5.2005. However, according to the version of the petitioner, the trap proceedings resulted abortive and nothing was found against him. For the same incident, the petitioner was subjected to disciplinary enquiry and a memorandum and charge sheet under Rule 16 of the Rajasthan Civil Services (Classification, Control and Appeal) Rules, 1958 (hereinafter referred to as ''the Rules of 1958'') was served on 19.4.2006 attributing misconducts. The complete text of charge sheet & statement of allegations is reproduced as under:

The Charge sheet was replied by the petitioner and thereafter a regular enquiry was conducted. The enquiry officer, Additional Superintendent of Police, Bikaner on conclusion of the enquiry, submitted his report on 29.11.2007 and exonerated the petitioner from all the charges. The disciplinary authority i.e. Director General of Police, on receipt of enquiry report disagreed with the findings and a show cause notice was issued to the petitioner showing the reasons for disagreement on 4.1.2008. Responding to the said show cause notice, the petitioner submitted, his reply/explanation on 16.1.2008, thereafter the petitioner was asked by the Additional Director General of Police (Vigilance) to appear in his office for voice test on 26.3.2008. The said communication of the Addl. Director General of Police, Vigilance was replied by the petitioner on 30.3.2008. The fact remains that no voice test was conducted and abruptly the petitioner was visited with the punishment order dt. 17.4.2008, passed by the Director General of Police, reverting him from the post of Circle Inspector to Sub Inspector for a period of three years.

Precisely for challenging the reasons for disagreement and punishment order, the petitioner has urged that the show cause notice served on him for disagreement is bereft of any reason and there was no justification for the disciplinary authority to disagree with the finding of the enquiry officer. The petitioner has also assailed the note of dis-agreement on the ground that the same is not in consonance and conformity with Rule 16(9) of the Rules of 1958, and therefore, the consequential punishment order is not sustainable.

On behalf of the respondents, reply to the writ petition was submitted and averments contained in the writ petition were denied in toto. The respondents in their return have submitted that the disciplinary authority while disagreeing with the finding of the enquiry officer has recorded cogent and sufficient reasons and thereafter has issued the order of punishment while is not liable to be interfered with in exercise of extra ordinary jurisdiction of this Court.

The matter came up before this Court at the threshold on 8.5.2008 and a notice to show cause was issued to the respondent. After service of notice, the matter again came up before this Court on 20.5.2008, but no one appeared on behalf of the respondents. Thereupon, the Court after hearing learned counsel for the petitioner, while admitting the writ petition passed following order:--

By the order dt. 17.4.2008 tie Director General of Police, Rajasthan imposed a penalty of reversion upon the petitioner for a term of three years. While assailing validity of tie same, the contention of counsel for the petitioner is that the petitioner was exonerated by the enquiry officer and the disciplinary authority while disagreeing with him penalized him by drawing a presumption that is not at all founded on any evidence. As per the petitioner, the instant one is a case of no evidence.

This Court by order dt. 8.5.2008 issued notice to show cause to the respondents. Notice for stay application was also issued. Nobody has put in appearance despite service.

Admit. Issue notice.

In the meanwhile and until further orders, operation and effect of the order dt. 17.4.2008, passed by the Director General of Police, Government of Rajasthan, Jaipur, shall remains stayed.

The interim order passed by the Co-ordinate Bench was extended from time to time and despite endeavor being made by. the respondents, the same was not modified or vacated and the same is still in currency..

Learned counsel for the petitioner Mr. Trilok Joshi has argued that as a matter of fact, the enquiry officer has examined the evidence and other materials on record threadbare and thereafter has concluded that no sufficient evidence is available against the petitioner for misconducts attributed to him, and therefore, in these circumstances, the order whereby the disciplinary authority has disagreed with the said finding is. per-se arbitrary and is not based on proper appreciation of evidence and the contents of enquiry report. Learned counsel for the petitioner submits that while examining the enquiry report on its receipt, the disciplinary authority is under an obligation to consider the record of the enquiry and thereafter record its finding on each charge for agreement or disagreement. He further submits that in the event of dis-agreement, the authority is expected to record its cogent and convincing reasons and not on the basis of mere suspicion it can discredit the petitioner findings and conclusions of the enquiry officer. Emphasizing the word consider, Mr. Joshi, learned counsel for the petitioner submits that it means that application of mind, and disciplinary authority is not expected to act mechanically to disagree with the findings of the enquiry officer. With these submissions, learned counsel for the petitioner has urged that the order impugned is not sustainable, During the course of arguments, learned counsel for the petitioner has also pointed out that for almost identical charge, even the trap proceedings, which were organized by the Anti Corruption Bureau, have failed, there was no occasion for the disciplinary authority to proceed against him. Thus, according to learned counsel, there is absolutely no justification to disagree with the findings of the enquiry officer and pass a penal order in given circumstances.

Per contra, learned Government Advocate Mr. I.S. Pareek has submitted that the disciplinary authority is well within its right to agree or disagree with the enquiry officer and have good and sufficient reasons that the disciplinary authority can disagree with the findings of the enquiry officer. Emphasizing the powers of the disciplinary authority in the context of facts and circumstances of the instant case, learned Government Counsel has argued that the disciplinary authority has adhered to the principles of natural justice by serving a show cause notice to the petitioner for reasons of disagreement with the findings of the enquiry officer and thereafter the impugned punishment order has been passed which is not liable to be interfered with in exercise of extraordinary jurisdiction of this Court. Mr. Pareek has urged that scope of judicial review in the matter of disciplinary enquiry under Article 226 of the Constitution of India is limited and interference is only warranted when there is serious procedural irregularity or the impugned order has occasioned failure of justice.

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

There is absolutely no quarrel in the legal position that on receipt of the enquiry report, the disciplinary authority can examine it and record its finding for agreeing with the report or to disagree with the same and further the disciplinary authority is also empowered to disagree with the finding of the enquiry officer for recording finding of guilt against the delinquent. However, while recording its disagreement the disciplinary authority is expected to examine the entire record of the enquiry and it is imperative for the disciplinary authority to record cogent and convincing reasons. The reasons for disagreement with the finding of enquiry report is required to satisfy conscience of a man of ordinary prudence and it cannot be based on mere suspicion. There cannot be two opinions that suspicion can not take shape of proof even in the domestic enquiries. If there is no evidence to sustain the charges against the delinquent neither the enquiry officer, nor the disciplinary authority can hold him guilty for the misdemeanor attributed to him. The Hon''ble Apex Court in case of Sher Bahadur Vs. Union of India (UOI) and Others, while considering the expression ''Sufficiency of Evidence'' has laid down following parameters in Para 7 of the verdict.

It may be observed that the expression "sufficiency of evidence" postulates existence of some evidence which links the charged officer with the misconduct alleged against him, Evidence, however voluminous it may be, which is neither relevant in a ***** sense nor establishes any nexus between the alleged misconduct and the charged officer, is no evidence in law. The mere fact that the enquiry officer has noted in his report, "in view of oral, documentary and circumstantial evidence as adduced in the enquiry", would not in principle satisfy the rule of sufficiency of evidence. Though, the disciplinary authority cited one witness Shri R.A. Vashist, Ex. CVI/Northern Railway, New Delhi, in support of the charges, he was not examined. Regarding documentary evidence, Ext. P-1, referred to in the enquiry report and adverted to by the High Court, is the order of appointment of the appellant which is a neutral fact. The enquiry officer examined the charged officer but nothing is elicited to connect him with the charge. The statement of the appellant recorded by the enquiry officer shows no more than his working earlier to his re-engagement during the period between May 1978 and November 1979 in different phases. Indeed, his statement was not relied upon by the enquiry officer. The finding of the enquiry officer that in view of the oral, documentary and circumstantial evidence, the charge against the appellant for securing the fraudulent appointment letter duly signed by the said APO (Const.) was proved, is, in the light of the above discussion, erroneous. In our view, this is clearly a case of finding the appellant guilty of charge without having any evidence to link the appellant with the alleged misconduct. The High Court did not consider this aspect in its proper perspective as such the judgment and order of the High Court and the order of the disciplinary authority, under challenge, cannot be sustained, they are accordingly set-aside.

In case of Kuldeep Singh Vs. The Commissioner of Police and Others, the Hon''ble Apex Court has held that judicial review under Article 226 of the Constitution of India is not totally barred. The Court has held that finding of guilt, which is not based on any evidence or is such as could not be reached by an ordinary prudent man or is perverse, the same is liable to be interfered with in exercise of power of judicial review under Article 226 or 32. The Hon''ble Apex Court made following observations in Para 6 of the verdict:

It is no doubt true that the High Court under Article 226 of this Court under Article 32 would not interfere with the findings recorded at the departmental enquiry by the disciplinary authority or the enquiry officer as a matter of course. The Court cannot sit in appeal over those findings and assume the role of the appellate authority. But this does not mean that in no circumstance can the court interfere. The power of judicial review available to the High court as also to this court under the Constitution takes in its stride the domestic enquiry as well and it can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictates of the superior authority.

Elaborating the same, the Court made following observations in para 9 & 10 of the verdict:

Normally the high Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the findings of "guilt" is based on no evidence, it would be a perverse finding and would be amenable to judicial scrutiny.

A broad distinction has, therefore, to be maintained between the decisions which are perverse and those which are not. If a decision is arrived at on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the findings would not be interfered with.

The legal position is no more res-integra that when findings of the enquiry officer is favourable to the delinquent, there are certain parameters to be applied for recording reasons of disagreement and the procedure to be followed for differing with the findings and conclusions of the enquiry officer in such matters. While exercising its powers, the disciplinary authority is required to act cautiously and is not expected to act at its whims and fancy to overturn the findings recorded by the enquiry officer without proper appreciation of the entire record of the enquiry. The powers vested in the disciplinary authority in such matters are not akin to veto power, and therefore, it is desirable from the disciplinary authority to examine the matter thoroughly and not to conclude on mere ipse dixit.

Hon''ble Apex Court, in case of Punjab National Bank and Others Vs. Sh. Kunj Behari Misra, , while examining the powers of the disciplinary authority in such matters, has made following observations in Para 18 & 19 of the verdict:

Under Regulation 6, the enquiry proceedings can be conducted either by an enquiry officer or by the disciplinary authority itself. When the enquiry is conducted by the enquiry officer, his report is not final or conclusive and the disciplinary proceedings do not stand concluded. The disciplinary proceedings stand concluded with the decision of the disciplinary authority. It is the disciplinary authority which can impose the penalty and not the enquiry officer. Where the disciplinary authority itself holds an enquiry, an opportunity of hearing has to be granted by him. When the disciplinary authority differs with the view of the enquiry officer and proposes to come to a different conclusion, there is no reason as to why an opportunity of hearing should not be granted. It will be most unfair and iniquitous that where the charged officers succeed before the enquiry officer, they are deprived of representation in the disciplinary authority before that authority differs with the enquiry officer''s report and, while recording a finding of guilt, imposes punishment on the officer. In our opinion, in any such situation, the charged officer must have an opportunity to represent before the disciplinary authority before final findings on the charges are recorded and punishment imposed This is required to be done as a part of the first stage of enquiry as explained in Karunakar case.

The result of the aforesaid discussion would be that the principles of natural justice have to be read into Regulation 7(2). As a result thereof, whenever the disciplinary authority disagrees with the enquiry authority on any article of charge, then before it records its own findings on such charge, it must record its tentative reasons for such disagreement and give to the delinquent officer an opportunity to represent before it records its findings. The report of the enquiry officer containing its findings will have to be conveyed and the delinquent officer will have an opportunity to persuade the disciplinary authority to accept the favourable conclusion of the enquiry officer. The principles of natural justice, as we have already observed, require the authority which has to take a final decision and can impose a penalty, to give an opportunity to the officer charged of misconduct to file a representation before the disciplinary authority records its findings on the charges framed against the officer.

Upon examining the show cause notice for disagreement and the impugned order on the touchstone of the ratio decidendi of Kunj Behari''s case (supra), in my considered opinion, the reasons for disagreement and consequential punishment order cannot be sustained. As a matter of fact, in the notice for disagreement and the impugned order, the disciplinary authority has not recorded cogent and convincing reasons for disagreeing with the findings and conclusions of the enquiry officer and the foundation of the disagreement is per-se based on mere suspicion on the ground that the delinquent has not volunteered for his voice test. True it is, that in departmental enquiries, standard of proof is not akin to that of criminal proceedings and conclusions can be drawn on preponderance of probabilities but at the same time it is also settled law that strong suspicion, strange co-incidences and grave doubts cannot take place of legal proof.

Learned counsel for the petitioner has also urged that during pendency of this writ petition meeting of departmental promotion committee was convened by the respondents for making promotion to the higher post but while considering candidature of the petitioner sealed cover procedure was resorted to and the recommendations were not disclosed. There is no need for this Court to issue any sort of direction in the matter as the same is not subject matter of this petition. The Court feels that the respondents shall act in accordance with the circular issued by the Government in this behalf and as per the verdict of Hon''ble Apex Court in case of Union of India Vs. K.V. Jankiraman, etc. etc., .

At this stage, the Court feels that enquiry has also tilted heavily in favour of the petitioner for granting him indulgence inasmuch as order impugned has not been given effect to since 2008, and on the strength of the same for last five years the petitioner is continuing on the post of Circle Inspector. Thus in totality of the circumstances, in the considered view of this Court, the order impugned cannot be sustained and the petition deserves acceptance. The net result of the above discussion is that this writ petition is allowed. The impugned order dt. 17.4.2008 passed by the disciplinary authority, Director General of Police, Rajasthan, Jaipur is quashed and set aside.

No order as to cost.