Ramakanta Sharma vs Union of India (UOI) and Others

A.S. Naidu, J.—The Petitioner is serving as an A.S.I. in Central Industrial Security Force, hereinafter to be called as ''CISF'', in short. In this writ application the Petitioner seeks to assail the Order Dated 28th March, 1996 passed by the Commandant-Disciplinary Authority finding him guilty in a disciplinary proceeding & imposing the penalty "reduced to the tower post of ASI/Exe. until he is found fit after a period of five year from the date of this order to be restored to the higher post of Sl/Exe. & further directing that after such re-promotion, he will regain his original seniority in the higher post, which has been assigned to him prior to imposition of penalty & the Order Dated 17.9.1996 (Annexure-11) passed by the Appellate authority, i.e., Deputy Inspector General rejecting the appeal filed by him thereby confirming the conclusions arrived -at by the Disciplinary Authority as well as the Order Dated 3.6.1998 passed by the Inspector General, CISF, Eastern Sector Headquarters refusing to interfere with the orders passed by the disciplinary authority as well as the Appellate authority & dismissing the revision.

Sworn of unnecessary details, the short facts, which are necessary for appreciating the controversy are as follows:

The Petitioner joined as a constable in the establishment of CISF on 19th June, 1972. By efflux of time, he was promoted to the post of Head Constable Driver in the year 1997. Thereafter, in the year 1989 he was promoted to the post of ASI (Exe) & posted at CISF Unit, Rourkela where he joined on 23.3.1993. He-was again promoted to the post of S.I. in the year 1994. His services, it is submitted, were blemish-less all through & he had earned many a laurels for his faithful & committed service. He had also successfully discharged many onerous duties entrusted to him during his service career. In the year 1995 he was instructed to act as Coordinating Officer with the Canteen in-charge to monitor the quality & timely service of the food to the members of the force. The Petitioner took up the assignment very seriously & adopted strict attitude with regard to the quality of food & timely service & cost of the food. Consequently, he earned many enemies, While the matter stood thus, on 16.9.1995 the Petitioner received an order of suspension from the Deputy Commandant, CISF, Rourkela (Annexure-2). By the said order, he was informed that the authorities are contemplating to initiate a disciplinary proceeding. During the suspension period the Petitioner was served with a charge-sheet on 24th September, 1995 vide Annexure-3 alleging that he received a sum of Rs. 500 as illegal gratification from Sri Sasikanta Mallick, brother of Sri Subhakanta Mallick, the owner of M/s. Swagatika Canteen. A memorandum of charge containing statement of imputation was on the Petitioner, but then it contained no document or statement basing upon which charge was framed. However, a list of witnesses was attached to the memorandum. After receipt of the memorandum of charges, the Petitioner requested Opp. Party No. 4, who was appointed as disciplinary authority to enquire into the charges, to supply him the following documents:

(i) Copy of the statement of Sashikanta Mallick, P.E

(ii) Copy of the statement of Sashikanta Mallick, P. E

(iii) Copy of the statement of Inspector, Jamuna Singh, P.E

(iv) Copy of all documents utilized in P.E.

(v) Copy of the G.D. entry in respect of the allegation dated 22/ 23.7.1995.

Opp. Party no 4, Commandant, CISF Unit, Rourkela however rejected the application filed by the Petitioner on the ground that the documents sought for have no bearing to the charges framed. After receipt of the rejection order (Annexure-5), the Petitioner submitted a preliminary show cause on 6th October, 1995 denying all the allegations as false & fabricated. After receipt of the show cause reply, the order of suspension was revoked with effect from 6th November, 1995 vide Annexure-7. In course of departmental proceeding, some witnesses were examined, who had no nexus with the allegations. The officer, who was in-charge on 23rd July, 1995 at 10.30 hours when the alleged occurrence said to have been taken place, was intentionally not examined by the department. The Enquiry Officer relying upon the evidence of the witnesses, who were inimical to the Petitioner without properly appreciating the same, came to the conclusion that the prosecution was able to establish the charges against the Petitioner. Copy of the enquiry report was served upon the Petitioner & he was called upon to submit his second show cause. After receipt of the enquiry report, the Petitioner submitted his show cause specifically taking the stand that as no documents were supplied to the Petitioner, the Enquiry officer acted illegally in relying upon the same. It is further submitted that in absence of the documents basing upon which the charges were framed, the Petitioner could not submit his full-fledged show cause & thus, great prejudice was caused to him. After receipt of the show cause, the disciplinary authority while agreeing with the finding of the Enquiry Officer, held that the charges against the Petitioner were serious in nature & as such, the Petitioner deserves a stringent punishment. However, the disciplinary authority taking into consideration the age of the Petitioner & the years of service ahead, took a lenient view & in exercise of the powers conferred upon him under Rule 22(A) of the CISF Rules, 1969, awarded the punishment as stated above. ''

The Petitioner after receipt of the order of punishment filed an appeal mainly on the ground that no document was supplied to him. Thus, there was clear violation of the principles of natural justice & that the Enquiry Officer as well as the disciplinary authority did not properly appreciate the evidence & the penalty imposed was unjust. The Appellate authority, however, it is alleged, without properly appreciating the submissions made abruptly held that the disciplinary authority has dealt with the evidence in extenso & there is no ground to interfere with the same. Consequently, the appeal was rejected on 17.5.1996. The Petitioner thereafter Invoking the jurisdiction u/s 9(3) of the CISF Act, 1968 filed a revision before the Central Government. The revisional authority also without properly appreciating the points raised, dismissed the revision. Being aggrieved, the Petitioner has filed this writ application assailing the illegal initiation of the disciplinary proceeding & the penalty imposed.

After receiving notice, counter affidavit has been filed by Opp. Parties broadly taking the stand that the Enquiry Officer conducted the departmental enquiry as per Rule 34 of the CISF Rules, & gave all reasonable opportunities to the delinquent to defend his case. He recorded the statement of three P.Ws. & one D.W. & basing upon the evidence recorded, came to the conclusion that the Petitioner was guilty of the charge & submitted the enquiry report to the disciplinary authority. It is stated that the disciplinary authority after perusing the cause shown by the Petitioner & also after going through the evidence & other materials available held that the conclusions arrived at by the Enquiry Officer was in connotation with the evidence adduced in course of enquiry. Considering the serious nature of the allegations & keeping in view the age factor & the services of the Petitioner, a lenient penalty was imposed. The Appellate authority, it is submitted, has also discussed the evidence & upheld the order passed by the disciplinary authority. The revisional authority on being satisfied that the enquiry was conducted following the principles of natural justice & equity & that the charge was well established, rejected the revision & confirmed the penalty imposed. The entire proceeding culminating in awarding the punishment having been conducted in accordance with law, it is stated that the punishment imposed needs no interference.

Heard learned Counsel for the Petitioner & Learned Counsel for the Union of India at length. Perused all the documents meticulously

According to Learned Counsel for the Petitioner, the Enquiry Officer acted illegally & with material irregularity in not supplying the relevant documents basing upon which the charge was framed. Consequently, the Petitioner was not in a position to defend him & thus, there was gross violation of principles of natural justice, It is further submitted that the Enquiry Officer acted illegally & with material irregularity in examining the witnesses twice in order to patch up the lacunas in their evidence, It is stated that P.Ws. 1, 2 & 3 in course of their examination & cross-examination did not disclose the date & time of occurrence To patch up such lacunas, the Enquiry Officer once again examined the witnesses after coaxing & tutoring them with avowed & oblique motive for proving the charge against the Petitioner. It is further submitted that not a single scrap of document was produced before the Enquiry Officer to substantiate the charge against the Petitioner. That apart, without any written complaint the authorities for the reasons best known, framed the charge & initiated the disciplinary proceeding. Non-supply of the relevant documents & examination of the witnesses twice to patch up the lacunas, it is. submitted goes to the root of the enquiry & leads to a presumption that the Enquiry Officer was prejudiced & was bent upon to punish the Petitioner on way or other. Learned Counsel for the Petitioner further submitted that the Appellate authority also acted illegally & with material irregularity in not taking into consideration the facts that the documents called for by the Petitioner were not supplied to him. The same mistake was also committed by the revisional authority. On the whole, according to Learned Counsel for the Petitioner, initiation of the departmental proceeding & the final orders of penalty passed by the authorities being contrary to law, the same needs to be set aside.

Learned Counsel for the Union of India, on the other hand, submitted that the Enquiry Officer has taken pains to see that the enquiry is conducted in a proper manner as stipulated u/s 34 of the CISF Rules. Enough opportunity was granted to the Petitioner to establish his case & in fact he had examined one witness in his defence. Taking a bribe of Rs. 500 by an employee of a disciplined force is a very serious offence, still then taking a lenient view, a minimum punishment was awarded to the Petitioner. In short, according to Learned Counsel, the disciplinary proceeding was conducted in consonance with law, the lacunas pointed out are only imaginary & the punishment imposed being a lenient one, this is a fit case where this Court may not interfere with the same.

To appreciate the arguments advanced, this Court went through the deposition of three witnesses. Subhakanta Mallick, the owner of M/s. Swagatika Canteen in his deposition stated that S.I. Yamuna Singh asked his brother to give a statement in writing & his brother gave a statement that he had paid Rs. 500 to S.I. R.K. Sharma (Petitioner) on his demand. He also signed the said statement. A reading of the evidence of the said witness reveals that he had no direct knowledge. He only learnt from his brother Sashikanta Mallick that the latter has paid a sum of Rs. 500 to the Petitioner, which he returned to his brother on a subsequent date. The statement of Yamuna Singh also reveals that he has no personal knowledge & learnt about the matter from Sashikanta Mallick. Sashikanta in his statement stated that his brother was caught by S.I. Yamuna Singh when he was carrying 2 bags of RSP coal in his motor cycle to his canteen. Apprehending that some punishment shall be imposed, he went to meet S.I., R. K. Sharma. S.I. R. K. Sharma demanded from him a sum of Rs. 500 so that the matter can be patched up. It is further slated that he returned to the canteen, took Rs. 400 & offered the same to S.I. R.K. Sharma, which he did not accept. He demanded Rs. 500. Thereafter, he again went to the canteen, brought Rs. 500 & gave it to the Petitioner personally. Though this witness was cross-examined at length, no contradictions could be elicited.

Law is well settled that this Court does not sit in appeal against the findings made in the departmental proceeding. Exercising the power under Article 227, this Court can interfere with the finding only if it is found that the conclusions arrived at are contrary to the evidence & shocking to commonsense. The Supreme Court in the case of Achutananda Baidya Vs. Prafullya Kumar Gayen and others, held as follows:

XX XX XX XX

As regards finding of fact of the inferior Court, the High Court should not quash the Judgment of the subordinate Court merely on the ground that its finding of fact was erroneous but it will be open to the High Court in exercise of the powers under Article 227 to interfere with'' the finding of fact if the subordinate Court came to the conclusion without any evidence or upon manifest misreading of the evidence thereby indulging in improper exercise of jurisdiction or if its conclusions are perverse.

In the case in hand, fact remains, no document was exhibited in the disciplinary proceeding. That apart, the disciplinary authority has also not disclosed the document basing upon which the disciplinary proceeding was initiated. It is not known as to whether Sashikanta Mallick, the brother of the owner of the canteen filed any written complaint against the Petitioner. The statement of Sashikanta Mallick said to have been recorded by Yamuna Singh, S.I. was also not produced in course of the disciplinary proceeding. It appears, the Petitioner prayed to supply all the documents so as to enable him to file his show cause and/or defend himself effectually. The said opportunity was denied to him. Perusal of the statement given by Sashikanta Mallick reveals that the Petitioner was neither directly involved nor any case was registered by the Petitioner against Subhakanta Mallick, the owner of the canteen. On the other hand, the scenario of facts reveal that R.K. Sharma, S.I. caught hold of Subhakanta Mallick when he was carrying two bags of coal. Apprehending that the said R.K. Sharma would initiate a proceeding against Subhakanta Mallick, it is alleged, his brother Sashikanta approached the Petitioner. The story appears to be improbable. If the complainant apprehended that R.K. Sharma will proceed against Subhakanta, in all prudence, they should have offered money to him & not to the Petitioner, who was no way connected with the incident. All these things create a cloud of suspicion which could have been cleared if the statement recorded by Sashikanta and/ or any complaint filed by Sashikanta would have been supplied to the Petitioner so as to enable him to cross-examine the said witness more effectually. Thus, it appears that valuable documents were kept out of the reach of the Petitioner. Consequently, he was greatly prejudiced to defend himself. Apart from the aforesaid facts, the prosecution failed to establish as to when & at what place the alleged amount of Rs. 500 was given to the Petitioner. It is not the case of the complainant that the said amount was paid outside the campus. On the other hand the sentry of the campus or the officer on guard duty was not examined to reveal that on the date of incident either Subhakanta or Sashikanta entered into the campus & met the Petitioner. The Enquiry Officer has not dealt with the aforesaid aspect. He has proceeded on the ground that the allegation of taking Rs. 500 towards gratification by a member of the force is a very serious offence. Law is well settled that however grave & serious an allegation may be, a person cannot be punished unless it is proved that he is involved in the commission of such offence. Only because an outsider has made a statement that he paid a sum of Rs. 500 towards illegal gratification, would not ipso facto establish that offence has been committed by the member of the force.

However, law is well settled that this Court does not sit to an appeal against the findings arrived at in a disciplinary proceeding. Exercising power under Article 227 of the Constitution, this Court can interfere with the finding only if it is found that the conclusions arrived at are contrary to the evidence & shocking to the commonsense....

The Petitioner is a responsible office of a disciplined force. As stated by the Petitioner he has shouldered many responsibilities during his long stretch of service career. Thus, the Enquiry Officer should have been more careful to examine as to whether the allegations leveled against him were bona fide or he has been made a scapegoat. A reading of the order passed by the disciplinary authority reveals that he has proceeded more on surmises & conjectures than cogent materials. That apart, the enquiry has not been conducted in a proper manner inasmuch as neither adequate opportunity was not given to the Petitioner, nor the complaint petition or the statement of the complainant was made available to him. Non-supply of documents greatly prejudices a delinquent as he would not be able to defend himself properly. Thus, this Court is satisfied that there was violation of the principles of natural justice & equity. Though the Petitioner specifically took a ground that relevant documents were not supplied to him before the Appellate authority, such aspect was not dealt with by the said authority so also the revisional authority.

In view of the aforesaid discussions, this Court has no hesitation to set aside the order passed by the disciplinary authority (Annexure 9), the order passed by the Appellate authority (Annexure 11) & the order passed by the revisional authority (Annexure-13) & remand the matter to the disciplinary authority for de novo disposal of the disciplinary proceeding. It is made clear that the authorities shall supply all the copies of the statements recorded as well as the complainant, if any, said to have been filed by Subhakanta & thereafter proceed with the enquiry strictly in accordance with law after giving adequate opportunity to the Petitioner. It is needless to say that on verification of the materials if the disciplinary authority is satisfied that in fact no complaint was filed & enough materials are not available prima facie connecting the Petitioner with the commission of the alleged offence, it would be open for him to drop the proceeding.

B.N. Mahapatra, J.

I agree.

Writ Application disposed of.