Full Text
JUDGMENT
+ LPA 406/2019 & C.M. No.28019/2019
SUNIL KUMAR SAXENA ..... Appellant
Through: Mr. Parveen Kumar, Advocate along with appellant in person.
Through: Mr. L.R. Khatana, Advocate for respondents No.1 to 4.
Mr. Rakesh Kumar, CGSC with
Mr.Sunil, Adv for respondent No.5.
HON'BLE MR. JUSTICE SANJEEV NARULA
1. The present appeal is arising out of judgment dated 22.04.2019 passed by the learned Single Judge in W.P.(C.) No. 8335/2017 titled Sunil Kumar Saxena Vs. Export Inspection Council, dismissing the writ petition against the order of removal dated 02.11.2015, inflicted by way of punishment by the Competent Disciplinary Authority in exercise of powers conferred under the Export Inspection Agency Employees (Classification, Control and Appeal) Rules, 1978 (Rules of 1978). The appellant has also challenged the order dated 14.02.2017, passed by the Appellate Authority.
2. The undisputed facts of the case reveal that the appellant before this Court was appointed on 25.01.1980 to the post of Peon in the services of Export Inspection Council. On 26.02.2012, an incident took place involving a minor scuffle between Mr. Deepak Shekhar and Mr. Praveen Sakhuja. On account of a minor scuffle between the aforesaid two persons, on 29.10.2012, an order was passed placing the petitioner under suspension in exercise of powers conferred under sub-Rule (a) of Rule 6 of the Rules of 1978 contemplating a departmental inquiry alleging his involvement also in the incident dated 26.02.2012.
3. A charge-sheet was issued on 30.10.2013 alleging violation of the Central Civil Services (Conduct) Rules 1964 – which are also applicable to the employees of the Export Inspection Agency (EIA). It was alleged that the appellant Sunil Kumar Saxena – while functioning as the Despatch Rider, conspired and connived with one Praveen Sakhuja – who was working as the Technical Officer at the EIA, as a result of which Shri Praveen Sakhuja physically assaulted Deepak Shekhar – retired Joint Director, Export Inspection Agency, Delhi, in the office premises. The statement of Article of Charge framed against the Appellant Sunil Kumar Saxena is reproduced as under: “Statement of article of charge framed against Shri Sunil Kumar Saxena, Dispatch Rider/Under Suspension, EIA- Delhi That said Shri Sunil Kumar Saxena, while functioning as Dispatch Rider, Export Inspection Agency-Delhi during the year 2012 conspired and connived with Shri Praveen Sakhuja, the then Technical Officer (now an ex-employee) in ETA-Delhi as a result of which Shri Praveen Sakhuja physically assaulted Shri Deepak Shekhar, Retd. Joint Director, EIA-Delhi in the office premises when Shri Deepak Shekhar visited the EIA- Delhi in the evening of 22/02/2012. The abovenamed Shri Sunil Kumar Saxena remained present during the entire period of the incident and his to and fro movements within, office premises prior and after the occurrence of incident as captured by CCTV cameras installed in the office premises of the EIA-Delhi show his active connivance with Shri Praveen Sakhuja. By his above act, Shri Sunii Kumar Saxena, Dispatch Rider, EIA-Delhi has committed misconduct, which is highly unbecoming of an EIA employee and thereby contravened Rule- 3(1)(iii) of the Central Civil Services(Conduct) Rules,1964, which are applicable to the EIA employees by virtue of Rule-7 of the Export Inspection Agency Employees (Classification, Control and Appeal) Rules, 1978.”
4. The Appellant/ petitioner submitted a reply to the charge-sheet on 02.01.2014, and an Inquiry Officer was appointed in the matter. The Inquiry Officer examined large number of witnesses, including Deepak Shekhar – who was examined (as SW-1). Shri Deepak Shekhar never stated in the departmental inquiry that he was assaulted by the appellant Sunil Kumar Saxena. He also admitted that the appellant never misbehaved with him.
5. Another witness Manoj Kumar Gupta was examined as SW-2, and in his statement, he did not levy any allegation in respect of misbehavior on behalf of the appellant/ petitioner. The appellant was examined on 15.06.2015 and made a request for examination of one Manoj Kumar Gupta as Defense Witness, however, his request was turned down by the Inquiry Officer on the ground that it was not made within time.
6. The Inquiry Officer, finally, submitted a report in the matter on 27.07.2015, and based upon the evidence captured by the CCTV and also retrieved from the DVD as well as the statement of witnesses, arrived at a conclusion that the charged official was present in the office; at the time of the incident, he was present at the spot; and in those circumstances, he has arrived at a conclusion that the charged official actively conspired and connived with Praveen Sakhuja resulting in assault upon Deepak Shekhar. The inquiry report was furnished to the charged official, to which a representation was also made by the charged official, and finally, the punishment of removal from service was inflicted upon the appellant by an order dated 02.11.2015, against which an appeal was preferred. The Appellate Authority – after taking into account the entire evidence on record, has modified the punishment of removal from service to that of compulsory retirement by an order dated 14.02.2017.
7. The learned Single Judge after hearing the parties at length has dismissed the writ petition, and in those circumstances, the present LPA has been filed. The operative paragraphs of the order passed by the learned Single Judge – as contained in paragraphs 15 to 30, read as under:
8. The order passed by the learned Single Judge reveals that the learned Single Judge has arrived at a conclusion that the departmental inquiry was held following the principles of natural justice & fairplay, and the High Court in exercise of its power of judicial review cannot examine the matter as an Appellate authority/ Court. Learned Single Judge – taking into account the judgment delivered by the Apex Court in Baikuntha Nath Das Vs. Chief District Medical Officer, (1992) 2 SCC 299, has dismissed the writ petition. The learned Single Judge keeping in view the other judgments of the Hon’ble Supreme Court on the issue of limited scope of interference of the High Court in respect of departmental inquiry, has dismissed the writ petition. The learned Single Judge has also held that the order of compulsory retirement is not a punishment and the principles of natural justice have no place in the context of an order of compulsory retirement.
9. This Court has heard learned counsel for the parties at length and perused the record.
10. The law regarding scope of interference in a departmental inquiry by High Courts has been dealt with in detail by the Hon’ble Supreme Court in Union of India Vs. P. Gunasekaran, (2015) 2 SCC 610. In paragraphs 12 & 13 of the judgment in P. Gunasekaran (supra), the Hon’ble Supreme Court has held as under:
11. The Hon’ble Supreme Court in the case of State of Karnataka Vs. N. Gangaraj, (2020) 3 SCC 423, has taken into account the earlier judgments delivered on the subject and reiterated that the scope of interference in departmental enquiry is quite limited. Interference in disciplinary proceedings can be done in case there is violation of principles of natural justice and fairplay or if the findings arrived at are based on no evidence/ perverse findings.
12. The Hon’ble Supreme Court in paragraph 7 of the judgment delivered in State Bank of Bikaner & Jaipur v. Nemi Chand Nalwaya, (2011) 4 SCC 584, has held as under:
13. The Hon’ble Supreme Court in State Bank of Bikaner & Jaipur (supra) has held that the Courts can interfere where the findings recorded in departmental proceedings are based on no evidence, or they are clearly perverse.
14. The Apex Court in paragraph 24 of the judgment in the case of SBI v. Ajai Kumar Srivastava, (2021) 2 SCC 612, has held as under: “24. It is thus settled that the power of judicial review, of the constitutional courts, is an evaluation of the decision-making process and not the merits of the decision itself. It is to ensure fairness in treatment and not to ensure fairness of conclusion. The court/tribunal may interfere in the proceedings held against the delinquent if it is, in any manner, inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or 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 or where the conclusions upon consideration of the evidence reached by the disciplinary authority are perverse or suffer from patent error on the face of record or based on no evidence at all, a writ of certiorari could be issued. To sum up, the scope of judicial review cannot be extended to the examination of correctness or reasonableness of a decision of authority as a matter of fact.”
15. In Ajai Kumar Srivastava (supra), the Hon’ble Supreme Court has laid down the parameters of interference in the matter of disciplinary proceedings and it has been held that in case the findings of disciplinary proceedings are perverse, or suffer from patent error on the face of record, or based on no evidence at all, a writ of certiorari could be issued.
16. In B.C. Chaturvedi v. Union of India, (1995) 6 SCC 749, the Hon’ble Supreme Court in paragraphs 12 & 13 has held as under:
17. In B.C. Chaturvedi (supra), the Hon’ble Supreme Court has held that the findings of the disciplinary authority can be interfered with if they are perverse, or based upon no evidence at all.
18. This Court – keeping in view the aforenoted judgments, has perused the entire evidence on record and finds that the present case is a case of no evidence.
19. In the present case, the victim of assault Deepak Shekhar has categorically stated before the Inquiry Officer that he was not at all assaulted by the Appellant. The only statement on the basis of which the appellant has been held guilty is the statement of Deepak Shekhar (SW-1) who has stated before the Inquiry Officer that the appellant was present at the spot. SW-1 has not categorically mentioned the involvement of the petitioner in respect of the assault. This Court really fails to understand as to how the appellant has been held guilty of conniving with the attacker by his mere presence at the spot, especially when he was an employee of the same department and his presence in the department – by virtue of being employee, is justified.
20. Another witness Manoj Kumar Gupta – who was also the Prosecution Witness, has also not at all stated about the involvement of the petitioner in respect of the assault. There is no other evidence on record, except the CCTV footage which simply establishes the presence of the charged official in the premises.
21. In the considered opinion of this Court especially in light of the statement of Deepak Shekhar – who was the victim, and Manoj Kumar Gupta – who was a Prosecution Witness, the present case is a case of no evidence. The Appellant who was an employee and was merely present at the spot cannot be charged for conniving assault upon another employee of the same organization. There is no whisper in the entire evidence to establish that it was the charged official who has connived to assault Deepak Shekhar (Victim). This Court is, therefore, of the considered opinion that in light of the judgment delivered in the case of P. Gunasekaran (supra), as the findings are based on no evidence, the findings arrived at by the Disciplinary Authority and the Appellate Authority are certainly perverse findings.
22. It is a well settled proposition of law that a High Court can interfere with the disciplinary inquiry or order passed by the competent authority, if the inquiry itself is vitiated on account of violation of principles of natural justice or where the disciplinary authority arrives at a finding that is unsupported by evidence or records a finding which no reasonable person could have arrived at. In the present case, the findings arrived at are based upon no evidence and, therefore, the order passed by the disciplinary authority and appellate authority deserves to be set aside.
23. The learned Single Judge – while dismissing the writ petition, has also arrived at a conclusion that the order of compulsory retirement is not a punishment and principles of natural justice have no place in the context of order of compulsory retirement. It is true that the punishment of removal was moderated to that of compulsory retirement but the fact remains that the compulsory retirement was inflicted upon the charged official by way of punishment and is one of the punishments provided under the service rules. Therefore, as the present case is a case of no evidence, the order of punishment and the order passed by the disciplinary authority and appellate authority deserve to be set aside and are, accordingly, set aside.
24. While the matter was being argued, learned counsel for the appellant, has categorically stated before this Court that the appellant is not praying for back wages nor is he claiming regular salary for the period during which he was under suspension. Accordingly, we allow the writ appeal and hold that the appellant shall be entitled to be treated in service till his actual date of superannuation and the respondent shall fix his salary notionally till the date of his actual superannuation which will consequently result in enhancement of pension and terminal dues. It is made clear that he will not be entitled to back wages and salary for the period he was under suspension and for the period he was out of job as the appellant – who was present in Court, has not pressed for the aforesaid reliefs.
25. Resultantly, the writ appeal is allowed. The order of removal dated 02.11.2015, the order dated 14.02.2017 passed by the Appellate Authority, and the judgment dated 22.04.2019 passed by the learned Single Judge in W.P.(C.) No. 8335/2017, are hereby set aside with the aforesaid observations. (SATISH CHANDRA SHARMA)
CHIEF JUSTICE
JUDGE AUGUST 18, 2023