Suresh Kumar vs State Of H.P. & Anr

Virender Singh, J

Petitioner-Suresh Kumar has invoked the extraordinary jurisdiction of this Court, under Article 226 of the Constitution of India, by way of filing Civil Writ Petition, which was initially registered as CWP No.7033 of 2013. Thereafter, the State Government has established the Himachal Pradesh State Administrative Tribunal (hereinafter referred to as the ‘Tribunal’), under the provisions of the Administrative Tribunals Act, 1985 (hereinafter referred to as the ‘Act’) and the said case was transferred to the Tribunal and registered as T.A. No.2028 of 2015.

After the abolition of the Tribunal, the said matter was again transferred to this Court and thereafter, registered as CWPOA No.1480 of 2019.

By way of the Civil Writ Petition, the petitioner has sought the following relief:-

“i) That the impugned order dated 27.5.2013, Annexure P-12, along with order of removal from service dated 2.1.2013, Annexure P-10 and Inquiry Report, Annexure P-8 may kindly be quashed and set aside with all consequential benefits.”

The abovementioned relief has been sought, by the petitioner, on the ground that he was appointed as TGT (Non-Medical), vide office order dated 31.07.1995 and he joined as such, in Government Senior Secondary School, Kawar, District Shimla, H.P. Thereafter, he was transferred to Government Senior Secondary School, Samela, District Mandi, H.P.

4.1. According to the petitioner, when, he was posted at Government Senior Secondary School, Samela, District Mandi, H.P., a student of Class IX-B had lodged a complaint, which is stated to be false and frivolous complaint and on the said complaint, the services of the petitioner were terminated by respondent No.2 on 15.06.2001.

4.2. It is the case of the petitioner that the said termination order was assailed by the petitioner, before the Tribunal, by moving O.A. No.1777 of 2001, which was, later on, transferred to this Court, in the year 2008 and was re-registered as CWP(T) No.7837 of 2008. When, the said matter was pending, before this Court, the criminal case, initiated against the petitioner, vide FIR No.129 of 2001 dated 09.06.2001, under Sections 354, 342, 506 of Indian Penal Code, was decided by the competent Court of law, on 22.01.2007 and the petitioner has been acquitted from all the charges levelled against him, in the said case.

4.3. As per the case of the petitioner, thereafter, CWP(T) No.7837 of 2008 was allowed, by this Court, on 28.07.2009 (Annexure P-1) and the termination order dated 15.06.2001, by virtue of which, the services of the petitioner were terminated, was quashed by granting all consequential benefits. However, this Court has also given the liberty to the respondents to proceed against the petitioner regarding his alleged misconduct, in accordance with law.

4.4. It is the case of the petitioner that on the basis of the said judgment (Annexure P-1), the petitioner was reinstated by respondent No.2, vide order No.EDN-H (25)B(15)2/2001-7-MND, dated: Shimla-171002, the January, 2010 (Annexure P-2). Since, the liberty was given to the respondents, as such, respondent No.2 had proposed to hold an enquiry against the petitioner, vide Memorandum dated 13.12.2010 (Annexure P-3), which was served upon the petitioner, along with statement of articles of charge and statement of imputation of misconduct, along with the list of documents and list of witnesses.

4.5. According to the petitioner, the Additional Director (Administration) was appointed as Inquiry Officer. In the said inquiry, according to the petitioner, he has engaged the Defence Assistant to defend him, before the Inquiry Officer and filed reply to the charge-sheet, vide reply dated 30.09.2011 (Annexure P-4). During inquiry, two witnesses, namely, Hans Raj Shandil, Principal, Government Senior Secondary School, Samela, District Mandi, H.P., and Principal, Government Senior Secondary School, Churag, District Mandi, were examined by the Presenting Officer, whereas, two witnesses, namely Amar Singh, Lecturer (English), Government Senior Secondary School, Baldwara, District Mandi and Dev Raj Dhiman, Drawing Master, Government Senior Secondary School, Nanwan, District Mandi, were examined by the petitioner as defence witnesses.

4.6. It is the case of the petitioner that on 24.01.2012, the Presenting Officer, in the inquiry, has submitted his written brief to the Inquiry Officer, copy of which was also supplied to the petitioner and written submissions were also submitted by the Defence Assistant, on behalf of the petitioner. However, vide communication dated 03.09.2012, the petitioner has received a Memorandum, signed by respondent No.2, along with inquiry report, for making representation on the proposed action of respondent No.2. Consequently, the petitioner submitted his detailed representation on 17.09.2012. However, vide order dated 02.01.2013, respondent No.2 had passed the order, by virtue of which, the petitioner was removed from services by imposing major penalty, under Rule 11(viii) of Central Civil Services (Classification, Control and Appeals) Rules, 1965 (hereinafter referred to as the ‘CCS Rules’).

4.7. It is the case of the petitioner that thereafter, he had assailed the said order, by moving the statutory appeal, before the Secretary (Education) to the Government of Himachal Pradesh, under Rule 23 of CCS Rules. However, his appeal was dismissed by the Secretary (Education) to the Government of Himachal Pradesh, on 27.05.2013 without considering the material, placed on record.

4.8. Order dated 27.05.2013, passed by the Secretary (Education) to the Government of Himachal Pradesh (Annexure P-12), has been assailed, before this Court, on the ground that there were two articles of charge, against the petitioner and as per the oral, as well as, documentary evidence, placed on record, during the inquiry, none of the charges has been proved, in accordance with law. Neither the Inquiry Officer, nor the competent authority and Appellate Authority have applied their judicial mind, while deciding the case of the petitioner. In this regard, the petitioner has relied upon the fact that the sole witness, which has been examined to prove charge No.1, has stated that he does not know anything about the incident, which allegedly took place in Government Senior Secondary School, on 07.06.2001. The petitioner has also assailed the said order on the ground that he has become the victim of personal enmity.

4.9. It is the further case of the petitioner that the Presenting Officer has submitted his brief note, mentioning therein, that as per the Attendance Register, Prem Sukh, TGT, was relieved on 08.06.2001 (F.N.), whereas, as per the statements, made by DW1 and DW2, Prem Sukh, TGT, was relieved on 07.06.2001 (F.N.). As such, the stand of the Presenting Officer is stated to be untrustworthy. No reason is stated to have been given by the Appellate Authority to reject the contention of the petitioner.

4.10. It is the further case of the petitioner that while issuing Memorandum dated 03.09.2012, respondent No.2 had mentioned that it is proposed to take action against the petitioner, under Rule 14 of CCS Rules, however, the same was not proposed in the said Memorandum. As such, the petitioner could not know as to what penalty is being imposed upon him.

On the basis of above facts, a prayer has been made to allow the petition, as prayed for.

When put to notice, the reply has been filed by the respondents, by taking preliminary objections that when, petitioner was working as TGT (Non-Medical), in Government Senior Secondary School, Samela, District Mandi, he had molested a girl student of Class IX and the matter was reported to the police by Principal, as well as, her parents, upon which, an FIR was registered. Thereafter, the matter was also enquired by the Deputy Director of Education, Central Zone Mandi. Subsequently, the enquiry was conducted and on the basis of enquiry report, services of the petitioner were terminated.

6.1. It is the case of the respondents that the said action has been assailed by the petitioner, by filing T.A. No.1777 of 2001 and thereafter, the matter was transferred to this Court and was finally decided on 28.07.2009, by allowing the writ petition and the order dated 15.06.2001 was set aside, due to the procedural irregularities, committed by respondent No.2, however, on the basis of the serious allegations, levelled against the petitioner, the liberty was given to the respondents to proceed against the petitioner, in accordance with law.

6.2. It is the further case of the respondents that thereafter, the procedure was followed. The charge-sheet was issued and after completing all the codal formalities, the services of the petitioner were decided to be terminated.

6.3. In nutshell, it is the case of the respondents that the charges, levelled against the petitioner, were duly proved and he had been found guilty of molesting a girl student, which is a heinous crime.

6.4. According to the respondents, the incident had taken place in the morning of 07.06.2001 and half-day casual leave for 07.06.2001 (A.N.) was applied by the petitioner, followed by sending casual leave for 08.06.2001.

6.5. It is the further case of the respondents that the student had levelled the allegations of sexual harassment against the petitioner. During enquiry, victim, who, as per the stand, is now married, was summoned vide letter dated 30.09.2011 to attend the hearing on 29.10.2011. Thereafter, she was again summoned for the second time, through the Principal, Government Senior Secondary School, Samela, to appear on 23.11.2011, by ensuring the service, through her father, but, her father did not disclose the address of the victim. The father of the victim had made a statement that his daughter has solemnized the marriage and is residing in her in-laws’ house and in order to save her marital life, a prayer had been made that the matter may be closed. However, the charges, levelled against the petitioner, are stated to be proved, on the statements of witnesses, so examined.

Justifying the penalty, imposed upon the petitioner, a prayer has been made to dismiss the petition.

The petitioner has filed the rejoinder denying the stand, as taken by respondents No.1 and 2, in the reply.

8.1. In the rejoinder, the petitioner has reiterated that the victim had never appeared before the Inquiry Officer, nor any document has been placed before the Inquiry Officer to substantiate the contention of the victim. He has also reiterated that the initial order of termination, dated 15.06.2001, was set aside by this Court and thereafter, the inquiry was ordered to be conducted against him. In the inquiry, the victim did not appear, nor, made any statement, in accordance with law. The conclusion, drawn by the Inquiry Officer, is stated to be whimsical and not based upon any evidence.

8.2. The inquiry report has also been assailed on the ground that respondent No.2 has travelled beyond jurisdiction by including charge No.2, which was not in the initial case, when this Court had set aside the termination order, dated 15.06.2001. According to the petitioner, charge No.2 had nothing to do with charge No.1. The documents, which have been relied upon by the Inquiry Officer, are stated to have not been proved, in accordance with law.

On the basis of above facts, a prayer has been made to allow the petition, as prayed for.

It is no longer res integra that the acquittal in criminal case has no effect upon the departmental proceedings, as, the acquittal of person from the criminal charge does not reinstate the said person in the service ipso facto.

It is the sole discretion of the disciplinary authority to decide as to whether the act falls within the definition of ‘misconduct’ or not. While holding so, the view of this Court is being guided by the decision of the Hon’ble Supreme Court in ‘State of Rajasthan and Others Versus Phool Singh’, reported in AIR 2022 SC 4176. Relevant paragraph 8 of the said judgment is reproduced, as under:-

“8. There should be no ambiguity in law on this subject. A departmental proceeding is different from a criminal proceeding. The fundamental difference between the two is that whereas in a departmental proceeding a delinquent employee can be held guilty on the basis of “preponderance of probabilities”, in a criminal court the prosecution has to prove its case “beyond reasonable doubt”. In short, the difference between the two proceedings would lie in the nature of evidence and the degree of its scrutiny. The two forums therefore run at different levels. For this reason, this Court has consistently held that merely because a person has been acquitted in a criminal trial, he cannot be ipso facto reinstated in service.”

In a recent decision, ‘State of Rajasthan and Others Versus Heem Singh’, reported in (2021) 12 Supreme Court Cases 569, the Hon’ble Supreme Court has again reiterated the effect of acquittal in criminal proceedings, on disciplinary proceedings. Relevant paragraphs 38 and 39 of the said judgment are reproduced, as under:-

“38. In the present case, we have an acquittal in a criminal trial on a charge of murder. The judgment of the Sessions Court is a reflection of the vagaries of the administration of criminal justice. The judgment contains a litany of hostile witnesses, and of the star witness resiling from his statements. Our precedents indicate that acquittal in a criminal trial in such circumstances does not conclude a disciplinary enquiry. In Southern Railway Officers Association v. Union of India, this Court held:

“37. Acquittal in a criminal case by itself cannot be a ground for interfering with an order of punishment imposed by the disciplinary authority. The High Court did not say that the said fact had not been taken into consideration. The revisional authority did so. It is now a well-settled principle of law that the order of dismissal can be passed even if the delinquent official had been acquitted of the criminal charge.”

(emphasis supplied)

In State v. S. Samuthiram, a two-Judge Bench of this Court held that unless the accused has an “honorable acquittal” in their criminal trial, as opposed to an acquittal due to witnesses turning hostile or for technical reasons, the acquittal shall not affect the decision in the disciplinary proceedings and lead to automatic reinstatement. But the penal statutes governing substance or procedure do not allude to an “honourable acquittal”. Noticing this, the Court observed: “Honourable acquittal

The meaning of the expression “honourable acquittal” came up for consideration before this Court in RBI v. Bhopal Singh Panchal. In that case, this

Court has considered the impact of Regulation 46(4) dealing with honourable acquittal by a criminal court on the disciplinary proceedings. In that context, this Court held that the mere acquittal does not entitle an employee to reinstatement in service, the acquittal, it was held, has to be honourable. The expressions “honourable acquittal”, “acquitted of blame”, “fully exonerated” are unknown to the Code of Criminal Procedure or the Penal Code, which are coined by judicial pronouncements. It is difficult to define precisely what is meant by the expression “honourably acquitted”. When the accused is acquitted after full consideration of prosecution evidence and that the prosecution had miserably failed to prove the charges levelled against the accused, it can possibly be said that the accused was honourably acquitted.

In R.P. Kapur v. Union of India [AIR 1964 SC 787] it was held that even in the case of acquittal, departmental proceedings may follow where the acquittal is other than honourable. In State of Assam v. Raghava Rajgopalachari, this Court quoted with approval the views expressed by Lord Williams, J. in Robert Stuart Wauchope v. Emperor, which is as follows:

“8. … ‘The expression “honourably acquitted” is one which is unknown to courts of justice. Apparently it is a form of order used in courts martial and other extrajudicial tribunals. We said in our judgment that we accepted the explanation given by the appellant, believed it to be true and considered that it ought to have been accepted by the government authorities and by the Magistrate. Further, we decided that the appellant had not misappropriated the monies referred to in the charge. It is thus clear that the effect of our judgment was that the appellant was acquitted as fully and completely as it was possible for him to be acquitted. Presumably, this is equivalent to what government authorities term “honourably acquitted”.”

As we have already indicated, in the absence of any provision in the service rules for reinstatement, if an employee is honourably acquitted by a criminal court, no right is conferred on the employee to claim any benefit including reinstatement. Reason is that the standard of proof required for holding a person guilty by a criminal court and the enquiry conducted by way of disciplinary proceeding is entirely different. In a criminal case, the onus of establishing the guilt of the accused is on the prosecution and if it fails to establish the guilt beyond reasonable doubt, the accused is assumed to be innocent. It is settled law that the strict burden of proof required to establish guilt in a criminal court is not required in a disciplinary proceedings and preponderance of probabilities is sufficient. There may be cases where a person is acquitted for technical reasons or the prosecution giving up other witnesses since few of the other witnesses turned hostile, etc. In the case on hand the prosecution did not take steps to examine many of the crucial witnesses on the ground that the complainant and his wife turned hostile. The court, therefore, acquitted the accused giving the benefit of doubt. We are not prepared to say that in the instant case, the respondent was honourably acquitted by the criminal court and even if it is so, he is not entitled to claim reinstatement since the Tamil Nadu Service Rules do not provide so.” (self-emphasis added)

In the present case, the judgment dated 22.01.2007, passed by the Court of learned Additional Chief Judicial Magistrate, Sarkaghat, District Mandi, Himachal Pradesh, in P. Challan No.82-II/2002, titled as ‘State Versus Suresh Chand’, has also been placed on record. According to the said judgment, the petitioner has been acquitted, as the prosecution has failed to prove its case, beyond the scope of reasonable doubt.

In this case, the petitioner had filed the statutory appeal, before the Secretary (Education) to the Government of Himachal Pradesh (Annexure P-11), against the penalty, which had been imposed upon him and vide Annexure P-12, his statutory appeal was dismissed by the competent authority.

In this legal and factual background, the material question, which arises for determination, before this Court, is about the scope of judicial review in such type of cases. The Hon’ble Supreme Court in ‘Kuldeep Singh Versus Commissioner of Police and Others’, reported in (1999) 2 Supreme Court Cases 10, has held that the scope of judicial review, under Article 226 of the Constitution of India, is not totally barred in departmental enquiry. Relevant paragraphs 6 to 10 of the said judgment are reproduced, as under:-

“6. It is no doubt true that the High Court under Article 226 or 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 dictate of the superior authority.

In Nand Kishore vs. State of Bihar, it was held that the disciplinary proceedings before a domestic Tribunal are of quasi-judicial character and, therefore, it is necessary that the Tribunal should arrive at its conclusions on the basis of some evidence, that is to say, such evidence which, and that too, with some degree of definiteness, points to the guilt of the delinquent and does not leave the matter in a suspicious state as mere suspicion cannot take the place of proof even in domestic enquiries. If, therefore, there is no evidence to sustain the charges framed against the delinquent, he cannot be held to be guilty as in that event, the findings recorded by the Enquiry Officer would be perverse.

The findings, recorded in a domestic enquiry, can be characterised as perverse if it is shown that such a finding is not supported by any evidence on record or is not based on the evidence adduced by the parties or no reasonable person could have come to those findings on the basis of the that evidence. This principle was laid down by this Court in State of Andhra Pradesh vs. Sree Rama Rao, in which the question was whether the High Court, under Article 226, could interfere with the findings recorded at the departmental enquiry. This decision was followed in Central Bank of India vs. Prakash Chand Jain and Bharat Iron Works vs. Bhagubhai Balubhai Patel & Ors. In Rajinder Kumar Kindra vs. Delhi Administration through Secretary (Labour) and Others, it was laid down that where the findings of misconduct are based on no legal evidence and the conclusion is one to which no reasonable man could come, the findings can be rejected as perverse. It was also laid down that where a quasi-judicial tribunal records findings based on no legal evidence and the findings are his mere ipse dixit or based on conjectures and surmises, the enquiry suffers from the additional infirmity of non-application of mind and stands vitiated.

Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding 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.”

(self-emphasis supplied)

Similar view has also been taken in ‘M.V. Bijlani Versus Union of India and Others’, reported in (2006) 5 Supreme Court Cases 88. Relevant paragraph

25 of the said judgment is reproduced, as under:-

“25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidences to prove the charge. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.”

The Hon’ble Supreme Court in ‘Roop Singh Negi Versus Punjab National Bank and Others’, reported in (2009) 2 Supreme Court Cases 570, has laid down broader parameters, to be followed in the departmental enquiry, by holding that the proceedings, before the Inquiry Officer, are quasi-judicial in nature. Relevant paragraph 14 of the said judgment is reproduced, as under:-

“14. Indisputably, a departmental proceeding is a quasi-judicial proceeding. The Enquiry Officer performs a quasi-judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in the disciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.”

(self-emphasis supplied)

It is not in dispute that vide judgment dated 28.07.2009, passed by this Court, in CWP(T) No.7837 of 2008 (OA No.1777/2001), titled as ‘Suresh Chand Versus State of H.P. and Another’, the termination order dated 15.06.2001, issued by respondent No.2, was quashed. However, a liberty was given to the respondents to proceed against the petitioner regarding the alleged misconduct, in accordance with law. The copy of the said judgment is on the file as Annexure P-1.

The next question, which arises for determination, before this Court, is whether the finding of the Inquiry Officer falls within the definition of ‘perverse finding’ or not. The term ‘perverse finding’ has duly been elaborated by the Hon’ble Supreme Court in ‘Arulvelu and Another Versus State represented by the Public Prosecutor and Another’, reported in (2009) 10 Supreme Court Cases 206. Relevant paragraphs 22 to 30 of the said judgment are reproduced, as under:-

“22. We have carefully perused the judgment of the trial court and the impugned judgment of the High Court. The trial court very minutely examined the entire evidence and all documents and exhibits on record. The trial court's analysis of evidence also seems to be correct. The trial court has not deviated from the normal norms or methods of evaluation of the evidence. By no stretch of imagination, we can hold that the judgment of the trial court is based on no evidence or evidence which is thoroughly unreliable and no reasonable person would act upon it and consequently the judgment of the trial court is perverse.

We also fail to arrive at the conclusion that the discussion and appreciation of the evidence of the trial court is so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse and the findings rendered by the trial court are against the weight of evidence. The law is well settled that, in an appeal against acquittal, unless the judgment of the trial court is perverse, the Appellate Court would not be justified in substituting its own view and reverse the judgment of acquittal.

The expression `perverse' has been dealt with in number of cases. In Gaya Din (Dead) through LRs. & Others v. Hanuman Prasad (Dead) through LRs. & Others, this Court observed that the expression `perverse' means that the findings of the subordinate authority are not supported by the evidence brought on record or they are against the law or suffer from the vice of procedural irregularity.

In Parry's (Calcutta ) Employees' Union v. Parry & Co. Ltd. & Others, the Court observed that `perverse finding' means a finding which is not only against the weight of evidence but is altogether against the evidence itself. In Triveni Rubber & Plastics v. Collector of Central Excise, Cochin, the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings.

In M. S. Narayanagouda v. Girijamma & Another, the Court observed that any order made in conscious violation of pleading and law is a perverse order. In Moffett v. Gough, the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. In Godfrey v. Godfrey, the Court defined `perverse' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc.

The expression "perverse" has been defined by various dictionaries in the following manner:

Oxford Advanced Learner's Dictionary of Current English Sixth Edition Perverse: Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unreasonable.

Longman Dictionary of Contemporary English –International Edition

Perverse: Deliberately departing from what is normal and reasonable.

The New Oxford Dictionary of English - 1998 Edition Perverse: Law (of a verdict) against the weight of evidence or the direction of the judge on a point of law.

New Webster's Dictionary of the English Language (Deluxe Encyclopedic Edition)

Perverse: Purposely deviating from accepted or expected behavior or opinion; wicked or wayward; stubborn; cross or petulant.

Stroud's Judicial Dictionary of Words & Phrases, Fourth Edition

Perverse: A perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence.

In Shailendra Pratap & Another v. State of U.P., the Court observed thus:

"8. … We are of the opinion that the trial court was quite justified in acquitting the appellants of the charges as the view taken by it was reasonable one and the order of acquittal cannot be said to be perverse. It is well settled that appellate court would not be justified in interfering with the order of acquittal unless the same is found to be perverse. In the present case, the High Court has committed an error in interfering with the order of acquittal of the appellants recorded by the trial court as the same did not suffer from the vice of perversity."

In Kuldeep Singh v. The Commissioner of Police & Others, the Court while dealing with the scope of Articles 32 and 226 of the Constitution observed as under:

"9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry but if the finding 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 meaning of `perverse' has been examined in H. B. Gandhi, Excise and Taxation Officer-cum- Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others 1992, this Court observed as under:

"7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the fact-finding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness – as distinguished from the legal permissibility - of the primary or perceptive facts themselves. It is, no doubt, true that if a finding of fact is arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant material or if the finding so outrageously defies logic as to suffer from the vice of irrationality incurring the blame of being perverse, then, the finding is rendered infirm in law."

Similar view has also been taken by the Hon’ble Supreme Court in ‘S.R. Tewari Versus Union of India and Another’, reported in (2013) 6 Supreme Court Cases 602. Relevant paragraph 30 of the said judgment is reproduced, as under:-

“30. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is “against the weight of evidence”, or if the finding so outrageously defies logic as to suffer from the vice of irrationality. If a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence 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, the conclusions would not be treated as perverse and the findings would not be interfered with. (Vide: Rajinder Kumar Kindra v. Delhi Administration, Kuldeep Singh v. Commissioner of Police & Ors., Gamini Bala Koteswara Rao & Ors. v. State of Andhra Pradesh thr. Secretary and Babu v. State of Kerala).”

Admittedly, the termination order dated 15.06.2001 was passed on account of the fact that FIR No.129 of 2001 was registered with Police Station Sarkaghat, on 09.06.2001, under Sections 354, 342, 506 IPC. The said termination order was set aside mainly on the ground of procedural irregularities, committed by respondent No.2, which, according to the judgment, had caused prejudice to the petitioner. The relevant paragraph 11 of the judgment dated 28.07.2009 is reproduced, as under:-

“11. The quashing of Annexure A-1 dated 15.6.2001 does not mean that the petitioner has been exonerated. The impugned order dated 15.6.2001 Annexure A-1 has been set-aside on the ground of procedural irregularities committed by the respondent No.2 which has caused prejudice to the petitioner. There is substance in the submission of the learned counsel for the respondents that the allegations against the petitioner are of serious nature, therefore, liberty is granted to the respondents to proceed against the petitioner in accordance with law with regard to his alleged misconduct.”

Meaning thereby, whatsoever liberty, given to the respondents, was confined to the issue, which was involved in CWP(T) No.7837 of 2008 (OA No.1777/2001). Therefore, Office Order No.EDN-H (25)B(15)2/2001-7-MND dated: Shimla-171002, the January, 2010 (Annexure P-2), was passed and the services of the petitioner were reinstated.

On 13.12.2010, a memorandum was issued by the Director, Elementary Education, Himachal Pradesh. Along with this memo, articles of charge have also been annexed. The Article-I of the charges is based upon the registration of FIR No.129 dated 09.06.2001, whereas, in Article-II of the charges, it has also been alleged that the petitioner has fraudulently obtained the appointment of TGT (Non-Medical), on contract basis, by hiding the fact from the authorities that he was involved in a case of moral turpitude, which led to his termination from service for molesting a student of Class IX on 07.06.2001. However, the petitioner was admittedly appointed on 31.07.1995.

Along with the said memo, list of documents, by virtue of which, articles of charge would have been proved, has also been annexed. In the list of witnesses, names of only two persons i.e. office staff (Principal), GSSS Smaila and the complainant, who allegedly lodged the FIR, against the petitioner, have been mentioned.

Memorandum dated 13.12.2010, Annexure P-3, was replied by the petitioner, vide Annexure P-4. In the reply (Annexure P-4), regarding affidavit dated 24.11.2008, a stand has been taken by him that he has sworn an affidavit on 24.11.2008, mentioning therein that he had never been dismissed by any Government/Semi Government Department/Organization, which, according to him, is based on the facts and under the Rules, as, removal from service is not a disqualification for future employment under the Government.

After the enquiry, copy of the enquiry report was supplied to the petitioner, vide Annexure P-8. The enquiry was conducted on the following article of charge:-

“Article – I

That the said Sh. Suresh Chand, while working as TGT(NM) in GSSS, Smaila, District Mandi molested Kumari Promila student of 9th Class during morning assembly hours on 7.6.2001, but the girl managed to escape after pushing the teacher and came out after opening the door which had been bolted earlier by said teacher and reported the matter to the Principal on the very next day after having told about this incident to the parents after school hours on the same day. An FIR No.129 was registered u/s 342, 354 & 506 IPC at Police Station, Sarkaghat on 9.6.2001. This is a grave misconduct which is unbecoming of a Government servant especially a teacher, who is required to uphold the high moral values and be a role model to the students. Sh. Suresh Chand, because of aforesaid misdeed has violated the rule 3.1(i) (ii) & (iii) of the CCS (Conduct) Rules, 1964 which makes him liable for disciplinary action under the provisions of rule 14 of CCS (CC&A) Rules, 1965 for having violated rule 3.1(i)(ii) & (iii) of the CCS (Conduct) Rules, 1964.”

The Presenting Officer has examined Hans Raj Shandil, Principal, Government Senior Secondary School, Smaila, District Mandi, H.P. and as per his deposition, the petitioner was on casual leave for half day on 07.06.2001 (A.N.) and one day casual leave for 08.06.2001, whereas, as per deposition of Dev Raj Dhiman, Drawing Master, Government Senior Secondary School, Nanwan, the petitioner was on casual leave on 08.06.2001. This witness has shown his ignorance about the incident, which had allegedly taken place on 07.06.2001.

Admittedly, the victim has not been examined, during the enquiry. When, the victim was served through her father, her father refused to provide the address of in-laws of the victim. The enquiry report is totally silent as to how the Inquiry Officer has come to the conclusion that Article-I of the charges is proved, whereas, it is a case of no evidence against the petitioner. The victim had not bothered to appear and depose against the petitioner. The Departmental witness Hans Raj, Principal, GSSS Smaila, has merely deposed regarding the half-day casual leave for 07.06.2001 and one-day casual leave for 08.06.2001, which is not sufficient to prove the allegations, as levelled against the petitioner.

Even otherwise, the Inquiry Officer has drawn a vague conclusion, while deciding Article-I of the charges, as, it has been concluded on the basis of School Attendance Register and other documents, whereas, no reference to the other documents has been given in the enquiry report.

The memorandum (Annexure P-8) was duly replied by the petitioner, vide Annexure P-9. The petitioner has also taken the stand regarding the second charge by mentioning the fact that he had already been acquitted from the charges, on 22.01.2007 and appointment was given to him on 14.11.2008. As such, according to the petitioner, there was no bar under the law for him to seek appointment, under the State Government. However, his stand, so taken, in the document (Annexure P-9), does not find favour by the competent authority and as such, the major penalty, regarding removal from service under Rule 11(viii) of CCS Rules, has been imposed upon him.

In the appeal also, the petitioner has taken the specific plea that he has not obtained the appointment of TGT (Non-Medical) on contract basis by hiding the material fact with regard to the involvement in the case of moral turpitude, which led to his termination. As per the stand, taken by the petitioner, he was acquitted from the charges, framed against him, on 22.01.2007 and thereafter, he had obtained the appointment on 14.11.2008. As such, there was no legal hitch for him to take a stand, which was taken in the affidavit, while obtaining the appointment on 14.11.2008. When, there was no evidence to prove Article-I of charges, then, merely on the basis of presumption, the finding of the Inquiry Officer to conclude that the said charge stood proved, falls within the definition of ‘perverse finding’ and similarly, the Appellate Authority has also fallen into error by dismissing the appeal, preferred by the petitioner.

So far as Article-II of charges is concerned, no doubt, the petitioner has admitted that he has sworn the affidavit, but, merely on this admission, it has wrongly been concluded by the Inquiry Officer that he had obtained the employment on contract basis by concealing or misrepresenting the facts, whereas, he has already been acquitted from the charges, framed against him, on the basis of FIR No.129 dated 09.06.2001.

In view of the discussions, made hereinabove, this Court has no legal hesitation to hold that the findings of the Inquiry Officer, which were also affirmed by the Secretary (Education) to the Government of Himachal Pradesh, fall within the four corners of ‘perverse findings’ and as such, the same are liable to be interfered with, by this Court, under Article 226 of the Constitution.

Consequently, the present petition is allowed and the petitioner is held entitled for the following relief:-

“The inquiry report (Annexure P-8), impugned order dated 27.05.2013 (Annexure P-12) and order of removal from service dated 02.01.2013 (Annexure P-10) are ordered to be quashed and set aside. Further, the petitioner is entitled for all the consequential benefits, as prayed for.”

Pending miscellaneous application(s), if any, shall also stand disposed of.