Ram Singh vs Union Of India And Ors

S.N. Terdal, J

We have heard Mr. Nilansh Gaur, counsel for applicant and Mr. Amit Anand, counsel for respondents, perused the pleadings and all the documents produced by both the parties.

In this OA, the applicant has prayed for the following reliefs:

"8.1. To set aside the impugned order of dismissal at Annexure A-1, Appellate order at Annexure A-2 and the finding of the enquiry officer at A-3 respectively.

8.2. To direct the respondents to reinstate the applicant in service with all consequential benefits

8.3 Any other relief which this Hon'ble Tribunal may deem fit and appropriate, in the circumstances of the case."

The relevant facts of the case are that for being willfully and unauthorisedly absent for 39 months, 22 days, 12 hours and 15 minutes, a summary of allegation was served on the applicant. The said summary of allegation is extracted below:

Period of absence

S.No

Date & DD

Date

&

DD

Month

Days

Hours

Min

Place of

No

of

No.

of

the

posting

absent

arrival

1

15/DFC

10/VVC

7

5

3

5

TRAFFIC

07.11.2005

12.06.2006

2

35/VVC

23/TML

12

5

5

0

TRAFFIC

17.08.2006

21.01.2008

3

46

19

1

18

21

0

TRAFFIC

13.05.2008

02.07.2008

4

63

64

0

6

23

5

TRAFFIC

16.07.2008

22.07.2008

5

71

21

9

10

19

5

TRAFFIC

17.08.2008

18.05.2009

6

39

10

9

3

23

0

TRAFFIC

10.08.2009

13.05.2010

TOTAL

39

20

22

15

Whereas, the past record of the Constable also shows that he has absented himself on various occasions earlier also, willfully and unauthorisedly.

The above act on the part of Ct (Exe.) Ram Singh No. 1949/T, amounts to gross misconduct, negligence, carelessness and dereliction in the discharge of his official duties which render him liable to be dealt with departmentally under the provision of Delhi Police (Punishment & Appeal) Rules, 1980."

Alongwith the summary of allegation, list of documents, and list of witnesses were served on the applicant. Though the applicant admitted the allegation but, however, in order to bring the relevant record on the departmental enquiry file, an Inquiry Officer was appointed. The Inquiry Officer following the principles of natural justice and also the relevant rules regarding conducting of the departmental enquiry, examined PW1 to PW7 and taken the defence statement submitted by the applicant and discussed the evidence and came to the conclusion that the charge leveled against the applicant was proved vide his inquiry report dated 08.11.2012. A copy of the inquiry report was served on the applicant. The applicant submitted a representation against the inquiry report. The disciplinary authority after going through the evidence of all the witnesses from PW1 to PW7 and finding of the inquiry officer and taking into account the grounds raised by the applicant in his representation against the inquiry report and recording that on 19 occasions earlier also he remained absent as such he was habitual absentee and imposed a penalty of dismissal with immediate effect on the applicant vide order dated 4.01.2013. The applicant filed an appeal. The appellate authority also once again examining the deposition of all the witnesses and also taking into account the grounds raised by the applicant in his appeal by a reasoned and speaking order rejected the appeal vide order dated 5.09.2013.

The counsel for the applicant vehemently and strenuously submitted that it is a case of no evidence, that the applicant was not given an opportunity to file defence statement and that the past records were not supplied to the applicant and that the punishment imposed is disproportionate. The counsel for the applicant further submitted that applicant was mentally disturbed and he was taking Ayurvedic treatment in Alwar and, therefore, the absence was neither willful nor deliberate. In support of his contention, the counsel for the applicant relied upon the following judgments:

(i) Krushnakant B.Parmar Vs. Union of India and Anr. (JT 2012 (2) SC 352.

(2) Shiv Karan Singh Vs. Govt. of NCT of Delhi & Ors (W.P(C) 3952/2015)

The counsel for the respondents equally vehemently and strenuously submitted that in the first instance the applicant had admitted the allegation and in the summary of allegation itself his earlier unauthorized absence was also mentioned and that the applicant has filed defence statement and that there is sufficient evidence to demonstrate that the applicant was habitual absentee and that the punishment imposed is not at all shockingly disproportionate and, therefore, this Tribunal should not interfere in the quantum of punishment imposed on the applicant in view of law laid down by the Hon'ble Supreme Court in catena of cases. He has also taken us through the deposition of PW1 to PW7 in the inquiry report He has also referred to the order passed by the disciplinary authority which is extracted below:

"A copy of the findings submitted by the Enquiry Officer was also sent to be served upon the defaulter vide U.O. No. 10651/HAP-T (D-1)/HQ) dated 12.11.2012 at his residence. The same was got receipted by his son on 5.12.2012 as defaulter was not found present at his residence. The messenger, Ct. Pawan Kumar No.2666-T went to his residence on 4.12.2012 and talked to the defaulter on telephone as he was not present. The defaulter assured him that he is coming to his residence, but he did not reach, deliberately. In his representation as well as in personal hearing on 21.12.20911, the defaulter mainly pleaded that he was mentally disturbed during the absence period and there was nobody in his family who intimate the department regarding his illness. He attached copies of medical sickness certificate issued from Rajiya Ayurvedic Chikitsalaya, Alwar in support of his unauthorized absence.

I have carefully gone through the findings of the Enquiry Officer and other material/ evidence available on the record of DE file and I am fully agreed with findings of Enquiry Officer. Moreover, the defaulter has also accepted the allegations during the DE proceedings. His plea that he was mentally disturbed during the period and taken Ayurvedic treatment at Alwar is not tenable. If, he was really ill, he should have taken the treatment from a specialized doctor at any Govt. hospital. He should have submitted the medical rest to the department and got approved from the disciplinary authority. Moreover, absence of more than 3 years cannot be tolerated in a disciplined force without any intimation to the department. During the whole absence period, he only had taken ayurvedic treatment from the same place despite no effect. He also remained absent unauthorisedly for 410 more days thereafter. Presently, he is still running absent. He also remained absent from duty on 19 occasions earlier, which shows that he is habitual absentee. However, previous absences are not being considered here.

In a disciplinary force willful and un-authorized absence, if taken leniently will not only encourage others to follow suit but it will also destroy the whole fabric of discipline. There is no doubt in establishing the charge leveled against him by the enquiry officer. The delinquent remained absent willfully and un-authorisedly, which is not acceptable in a disciplined force in any manner."

In the case of Life Insurance Corporation of India & Others Vs. S.Vasanthi (Civil Appeal No. 7717/2014), the Hon'ble Supreme Court after referring to catena of cases laid down the law stating that courts have no jurisdiction to interfere with the quantum of punishment imposed by the competent departmental authorities as a consequent of holding departmental enquiry, with one exemption of the punishment being shockingly disproportionate as stated in para 6, which is extracted below:

"6. When the charge proved, as happened in the instance case, it is the disciplinary authority with whom lies the discretion to decide as to what kind of punishment is to be imposed. Of course, this discretion has to be examined objectively keeping in mind the nature and gravity of charge. The Disciplinary Authority is to decide a particular penalty specified in the relevant Rules. Host of factors go into the decision making while exercising such a discretion which include, apart from the nature and gravity of misconduct, past conduct, nature of duties assigned to the delinquent, responsibility of duties assigned to the delinquent, previous penalty, if any, and the discipline required to be maintained in department or establishment where he works, as well as extenuating circumstances, if any exist. The order of the Appellate Authority while having a re-look of the case would, obviously, examine as to whether the punishment imposed by the Disciplinary Authority is reasonable or not. If the Appellate Authority is of the opinion that the case warrants lesser penalty, it can reduce the penalty so imposed by the Disciplinary Authority. Such a power which vests with the Appellate Authority departmentally is ordinarily not available to the Court or a Tribunal. The Court while undertaking judicial review of the matter is not supposed to substitute its own opinion on reappraisal of facts.(See: Union Territory of Dadra & Nagar Haveli vs. Gulabhia M.Lad (2010) 5 SCC 775) In exercise of power of judicial review, however, the Court can interfere with the punishment imposed when it is found to be totally irrational or is outrageous in defiance of logic. This limited scope of judicial review is permissible and interference is available only when punishment is shockingly disproportionate, suggesting lack of good faith. Otherwise, merely because in the opinion of the Court lesser punishment would have been more appropriate, cannot be a ground to interfere with the discretion of the departmental authorities."

In view of the facts and circumstances of the case, we are of opinion that the punishment imposed is not shockingly disproportionate to the misconduct established.

The law relating to judicial review by the Tribunal in the departmental enquiries has been laid down by the Hon'ble Supreme Court in the following judgments:

(1). In the case of K.L.Shinde Vs. State of Mysore (1976) 3 SCC 76), the Hon'ble Supreme Court in para 9 observed as under:-

"9. Regarding the appellant's contention that there was no evidence to substantiate the charge against him, it may be observed that neither the High Court nor this Court can re-examine and re-assess the evidence in writ proceedings. Whether or not there is sufficient evidence against a delinquent to justify his dismissal from service is a matter on which this Court cannot embark. It may also be observed that departmental proceedings do not stand on the same footing as criminal prosecutions in which high degree of proof is required. It is true that in the instant case reliance was placed by the Superintendent of Police on the earlier statements made by the three police constables including Akki from which they resiled but that did not vitiate the enquiry or the impugned order of dismissal, as departmental proceedings are not governed by strict rules of evidence as contained in the Evidence Act. That apart, as already stated, copies of the statements made by these constables were furnished to the appellant and he cross-examined all of them with the help of the police friend provided to him. It is also significant that Akki admitted in the course of his statement that he did make the former statement before P. S. I. Khada- bazar police station, Belgaum, on November 21, 1961 (which revealed appellant's complicity in the smuggling activity) but when asked to explain as to why he made that statement, he expressed his inability to do so. The present case is, in our opinion, covered by a decision of this Court in State of Mysore v. Shivabasappa, (1963) 2 SCR 943=AIR 1963 SC 375 where it was held as follows:-

"Domestic tribunals exercising quasi-judicial functions are not courts and therefore, they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence. They can, unlike courts, obtain all information material for the points under enquiry from all sources, and through all channels, without being fettered by rules and procedure which govern proceedings in court. The only obligation which the law casts on them is that they should not act on any information which they may receive unless they put it to the party against who it is to be used and give him a fair opportunity to explain it. What is a fair opportunity must depend on the facts and circumstances of each case, but where such an opportunity has been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts.

In respect of taking the evidence in an enquiry before such tribunal, the person against whom a charge is made should know the evidence which is given against him, so that he might be in a position to give his explanation. When the evidence is oral, normally the explanation of the witness will in its entirety, take place before the party charged who will have full opportunity of cross-examining him. The position is the same when a witness is called, the statement given previously by him behind the back of the party is put to him ,and admitted in evidence, a copy thereof is given to the party and he is given an opportunity to cross-examine him. To require in that case that the contents of the previous statement should be repeated by the witness word by word and sentence by sentence, is to insist on bare technicalities and rules of natural justice are matters not of form but of substance. They are sufficiently complied with when previous statements given by witnesses are read over to them, marked on their admission, copies thereof given to the person charged and he is given an opportunity to cross-examine them."

Again in the case of B.C.Chaturvedi Vs. UOI & Others (AIR 1996 SC 484) at para 12 and 13, the Hon'ble Supreme Court observed as under:-

"12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in eye of the Court. When an inquiry is conducted on charges of a misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice be complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent office is guilty of the charge. The Court/Tribunal on its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry of where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.

The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H. C. Goel (1964) 4 SCR 718 : (AIR 1964 SC 364), this Court held at page 728 (of SCR): (at p 369 of AIR), that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued".

Recently in the case of Union of India and Others Vs. P.Gunasekaran (2015(2) SCC 610), the Hon'ble Supreme Court has observed as under:-

"Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge no. I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:

a. the enquiry is held by a competent authority;

b. the enquiry is held according to the procedure prescribed in that behalf;

c. there is violation of the principles of in conducting the proceedings; natural justice

d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;

e. the authorities have allowed themselves to be influence by irrelevant or extraneous consideration;

f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;

g. the disciplinary authority had erroneously failed to admit the admissible and material evidence;

h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;

i. the finding of fact is based on no evidence."

In view of the facts of the case narrated above and in view of the law laid down by Hon'ble Apex Court referred to above and also in view of the law laid down by Hon'ble Supreme Court in the case of LIC (supra) and in view of the facts that the counsel for the applicant has not brought to our notice violation of any of the principles of natural justice or any of the procedural rules of holding DE, the impugned finding of the Inquiry Officer and impugned orders do not require to be interfered with. Accordingly, the OA is dismissed. No order as to costs.