Subhash Chandra Sahu vs State of Jharkhand

The writ petitioner after his failed attempt to successfully assail legality of the order of dismissal dated 03.01.2014 and the appellate order which

was communicated to him through memo dated 29.07.2015 has preferred this Letters Patent Appeal under Clause 10 of the Letters Patent.

Plea raised by the appellant is that the departmental enquiry was conducted in breach of the rules of natural justice and it was a case of “no

evidenceâ€​ still, the extreme punishment of dismissal from service has been inflicted upon him.

Briefly stated, on the basis of a newspaper report published in the daily newspaperâ€"Dainik Bhaskar on 17.01.2012, a preliminary enquiry was

conducted on an allegation against the appellant that for supplying free copy of the judgment in R.C. 52A/96 he has taken illegal gratification. In the

preliminary enquiry which was conducted by the Registrar of the Civil Court, Ranchi allegation of receiving illegal gratification by the appellant was

prima-facie found true and consequently, a departmental proceeding was initiated against him by serving a charge-memo dated 25.01.2012 upon him.

During the enquiry eight witnesses were examined; A.W.5 was the photographer of the newspaperâ€"Dainik Bhaskar who has captured the incident

in the camera. The enquiring officer recorded a finding that charge against the appellant is not proved, however, the disciplinary authority through the

“note of disagreement†dated 18.11.2013 supplied the reasons for his disagreement with the finding recorded by the enquiring officer. The

delinquent has submitted his response to the “note of disagreement†on 13.12.2013. Finally, penalty of dismissal from service was awarded to the

appellant vide order dated 03.01.2014 and the appellate authority has rejected the appeal preferred by him against the order of dismissal from service.

On violation of the rules of natural justice during the departmental enquiry it is contended that a copy of “note of disagreement†was not

supplied to the appellant, nor second show-cause notice was issued to him. It is also contended that the charge-memo was not accompanied by the list

of witnesses and the list of documents, and a copy of the preliminary enquiry report was not supplied to the delinquent.

The disagreement of disciplinary authority with the enquiry report is contained in an order dated 18.11.2013 passed in the departmental enquiry vide

Order No. 34 and it bears an endorsement that a copy of the note of disagreement has been forwarded to the delinquent. It stands admitted by the

appellant that he has submitted a detailed reply to the note of disagreement contained in memo dated 19.11.2013; his reply runs into 19 pages.

In “Punjab National Bank and Others vs. Kunj Behari Misra†reported in (1998) 7 SCC 84, the Supreme Court has held that whenever the

disciplinary authority disagrees with the enquiring 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 respond to it. The disciplinary authority has,

infact, recorded its tentative findings on the evidences led during the departmental enquiry and it is not that it has presumed certain facts beyond the

record of the case. The note of disagreement by the disciplinary authority refers to statement of the witnesses, more particularly, A.W.2-Sanjay Sinha,

A.W.5-the photographer, D.W.2-Satendra Kumar Mehra, A.W.6-Ranjit Kumar Mishra and failure of the enquiring officer to consider evidence of the

witnesses, presence of the delinquent outside the court during the court hours in the company of the accused persons etc. In these facts, submissions

made by the learned Senior counsel for the appellant in the context of the disagreement note must fail.

Plea taken by the appellant that second show-cause notice was not served upon him is equally untenable. Moreover, in the writ petition the

appellant has not taken a plea that neither the note of disagreement nor second show-cause notice was served upon him.

On supply of the preliminary enquiry report to the delinquent, for non-supply of which according to the learned Senior counsel for the appellant the

penalty order must be held illegal, it needs to be recorded that in his reply dated 18.02.2012 in response to the charge framed against him in

Departmental Proceeding No. 2 of 2012 the appellant has dealt with statement of the witnesses recorded by the Registrar, Civil Court who conducted

the preliminary enquiry in the matter; the preliminary enquiry report was submitted on 25.01.2012, charge-memo was served upon the appellant on

25.01.2012 and he has submitted his reply on 18.02.2012. In his reply dated 18.02.2012 the delinquent has stated, “A preliminary enquiry was

conducted by the Registrar, Civil Court, Ranchi where the witnesses have not supported the allegation of making any paymentâ€. On non-supply of

the preliminary enquiry report contention raised by the appellant is sought to be fortified by Mr. Anil Kumar Sinha, the learned Senior counsel for the

appellant with reference to decision in “State of Uttar Pradesh vs. Mohd. Sharif (dead) through L.Rs.†reported in AIR 1982 SC 937. However,

once it is found that a copy of the preliminary enquiry report was served upon the appellant, a fact corroborated from his reply dated 18.02.2012, this

plea of the appellant must be rejected. It is not a case pleaded by the appellant that during the departmental enquiry he demanded supply of

documents, more specifically a copy of the preliminary enquiry report, still it was not supplied to him. Even in the writ petition, he has not raised such a

grievance.

Lastly, it was contended by Mr. Anil Kumar Sinha, the learned Senior counsel for the appellant that once seven out of eight witnesses have not

supported the charge framed against the delinquent and the photographer who was examined as A.W.5 has himself admitted that he did not hear

conversation between the accused-Ranjit Kumar Mishra and the delinquent, case against the appellant turns out to be a case of “no evidenceâ€

and while so, the order of punishment of dismissal from service warrants interference by this Court.

Jurisdiction of the High Court to interfere with the orders passed in the departmental enquiry has been examined by the Supreme Court in several

cases. In one of the earliest judgments, in

“State of A.P. and Others vs. S. Shree Rama Rao†reported in AIR 1963 SC 1723, it has been held that the High Court is not constituted in a

proceeding under Article 226 of the Constitution of India a Court of Appeal over the decision of the authorities holding a departmental enquiry against

a public servant. By now, it is well-settled that the High Court may interfere with the punishment awarded in a departmental enquiry if the

departmental enquiry was held against the delinquent in a manner inconsistent with the rules of natural justice or contrary to the Discipline and

Conduct Rules. It is also well-settled that where it appears to the writ Court that the departmental authorities have excluded from consideration a

relevant material which ought to have been considered or considered irrelevant or extraneous materials which has led to the departmental authority to

a wrong conclusion, the Court may quash the order of punishment, but it is not sufficiency of evidence which can be examined by the High Court

while exercising jurisdiction under Article 226 of the Constitution of India. If it is found that an authority legally vested with jurisdiction has arrived at a

conclusion which is reasonably supported by the evidence led during the departmental enquiry, the High Court would not exercise its jurisdiction in a

manner as if it is a Court of Appeal. It also needs to be indicated that it is not the quantity of evidence which matters, rather it is the quality of

evidence which matters the most.

Evidence of the photographer remains unchallenged. In his examination-in-chief he has categorically stated that he had seen the delinquent

accepting money from the accused. This incident was captured by him in camera and the photograph has been verified and authenticated. He has

withstood the test of cross-examination. He has given a detailed description of the incident and also stated that the delinquent had requested him not to

publish the photograph. He has denied the suggestions that there is any manipulation in the photograph. The witness-Upendra Kumar Das

(A.W.1) has stated that on 16.01.2012 accused-Sanjay Sinha was convicted and sentenced to undergo R.I. for two years and he was released on

provisional bail. One of the witnesses has stated that when the accused-Sanjay Sinha asked about issuance of certified copy the delinquent replied

what is the hurry in the matter. The accused-Ranjit Kumar Mishra (A.W.6) has stated that the currency note in his hand was fee for the junior lawyer

but his lawyer namely, Chandra Shekhar (A.W.4) has stated that soon after the judgment was delivered he had left the court. The defence witness-

D.W.2 has spoken about the accused persons demanding copy of the judgment. Evidence of these witnesses when read together supports the charge

of receiving illegal gratification by the appellant for supplying free copy of the judgment in R.C. 52A/96. The accused persons and the advocates who

were examined, during the preliminary enquiry and the departmental enquiry, had a reason, a good reason, not to admit that they had offered or the

delinquent had demanded illegal gratification. In the preliminary enquiry itself the Registrar, Civil Court, Ranchi has recorded that there are other cases

against the accused persons pending in the court and that was a good reason for them as well as their advocates not to support the charge of illegal

gratification against the delinquent. Moreover, there could have been an apprehension in their minds of getting themselves involved in another case.

Another aspect of the matter which needs to be indicated is falsity of defence taken by the delinquent. He has taken a stand that judgment in R.C.

52A /96 was delivered on 16.01.2012 and the case was posted on the point of sentence on 18.01.2012, whereas it is an admitted position that the

accused persons were enlarged on provisional bail on 16.01.2012. Evidently, after the judgment of conviction the Court had passed order on sentence

on 16.01.2012 and, therefore, it was necessary for the accused persons to obtain free copy of the judgment so as to enable them to file their appeal.

The accused persons were admitted to provisional bail on 16.01.2012 is a fact also admitted by the delinquent in his reply dated 18.02.2012.

While entertaining a challenge to the order of punishment this has also to be kept in mind that approach of the authority in a disciplinary enquiry

and the court in a criminal trial, appreciation of evidence in a departmental enquiry and in the criminal trial and the burden of proof in both the

proceedings are different. While strict rules of evidence are not applicable in the departmental enquiry and it is preponderance of probability which is

the test applied in a departmental enquiry, in a criminal trial a charge must be proved beyond all shadow of reasonable doubt. Stand taken by the

appellant that the charge of illegal gratification, even in a departmental enquiry, must be proved to the hilt would not mean that the test of

preponderance of probability applied in a departmental enquiry should be converted into one of beyond all shadows of reasonable doubt. In “Union

of India vs. Sardar Bahadur†reported in (1972) 4 SCC 618, the Supreme Court has held that the disciplinary proceeding is not a criminal trial and the

standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt. In a recent judgment in the case of

“Nirmala J. Jhala Vs State of Gujarat & Anr.â€​ reported in (2013) 4 SCC 301, the Supreme Court has observed as under :

17. “In view of the above, the law on the issue can be summarised to the effect that the disciplinary proceedings are not a criminal trial, and in

spite of the fact that the same are quasi-judicial and quasi-criminal, doctrine of proof beyond reasonable doubt, does not apply in such cases, but the

principle of preponderance of probabilities would apply. The Court has to see whether there is evidence on record to reach the conclusion that the

delinquent had committed a misconduct. However, the said conclusion should be reached on the basis of test of what a prudent person would have

done.â€​

On a consideration of the evidence of the witnesses examined during the departmental enquiry, may be all of them have not fully supported the

charge against the delinquent, we hold that the disciplinary authority has come to a correct conclusion and rightly disagreed with the finding of the

enquiring officer that the charge against the delinquent has not been proved. Punishment of dismissal from service, in our considered opinion, is the

most appropriate order in a case of this nature.

The writ Court has properly considered the materials placed during the departmental enquiry and noticing the limitation on powers of judicial

review has dismissed the writ petition by order dated 30.09.2016. We have also bestowed out anxious consideration to the plea raised by the appellant

and examined the materials on record including the writ Court's records and we find ourselves in agreement with conclusion of the learned Single

Judge.

In view of the aforesaid facts and for the reasons recorded hereinabove, the Letters Patent Appeal is dismissed.Â