Nand Kishore v. High Court of Delhi & Anr.

1. The petitioner, while working as Bailiff in the District Courts, Tis Hazari, Delhi was dismissed from service after facing a departmental enquiry under Rule 14 of the CCS (CCA) Rules, 1965 [now Rule 29 of Delhi District Courts Establishment (Appointment & Conditions of Service) Rules, 2012] on the following articles of charges:- "Article-I Sh. Nand Kishore S/o Sh. Manphool Singh, Bailiff while posted in the Nazarat Branch, Tiz Hazari Courts, Delhi was marked a warrants of possession issued from the court of Sh. S.S. Malhotra, Ld. ARC, Karkardoama Courts, Delhi, in Ex. No. 21/06, titled as 'Attar Singh Vs. Smt. Sarda @ Shabnam, for dated 01.03.2006. On 01.03.2006, at 12 noon, he with one other person alongwith 4 police persons, 2 of them from PCR and 2 of them from PS Seelampur visited the premises of the complainant (Judgment Debtor) and asked to vacate the suit premises upon which the complainant showed the necessary documents to him but he refused to accept the same and asked the complainant to bring the stay of warrant of possession. On 01.03.2006, the Judgment Debtor approached the concerned court for the cancellation/stay of warrant of possession and the court granted stay on warrants of possession and even the copy of that order was given dasti to the Judgment Debtor and the JD reached the suit premises at about 2:40 PM. and showed him the copy of the said stay order but he refused to obey/accept the order of the court and demanded Rs.10.000/- from the Judgment Debtor to stop the eviction and when the complainant refused to give money to him then he said that the said order of the court was fake and fabricated and he will not stop the proceedings. Then he forcibly obtained the thumb impression of the sport and left the spot at about 4: 15 PM. Article-II His previous conduct shows that he was censured vide order dated 18.01.1989 for not returning the process in time. Article-III His previous conduct shows that vide order dated 01.01.1989, his pay was reduced by on stage in pay scale Rs.774/- to 762/- for one year for non returning of process. Article-IV Previously vide order dated 04.09.1991. he was warned to be careful in future for unauthorized absence from duties since 08.07.1991 to 14.08.1991 and his pay & allowances was not drawn for the that period. Article-V Previously vide order dated 18.08.1993, he was awarded major penalty and his pay was reduced by one stage lower ill time scale for a period of one year regarding departmental proceedings initiated against him. Article- VI Previously vide order dated 29.03.1994, he was charge-sheeted and his pay was reduced by two stages lower in time scale w.e.f. 01.04.1994. regarding departmental proceedings initiated against him. Article-VII Previously vide order dated 22.7.2000. he was directed to work as Farash from the post of Process Server. Article-VIII Previously vide order dated 05,09,2001, he was suspended w.e.f. 01.09,2001 as he was found consuming liquor in the office premises on 20.07.2001. Article-IX Previously vide order dated 04,11,2004, he was censured for possessing bottle of alchohal after having consumed a part of it in Room No, 304-A on 20,07.2001, Article-X Previously vide order dated 12.07.2005, he was censured for non returning of summons of the court of Sh. Rakesh Kapoor, Ld. ARC, Delhi. Article-XI Previously vide order dated 12.09.200, a penalty of withholding of two grade future increments without cumulative effect was imposed upon him for non returning of summons. Article-XII Previously vide order dated 17.10.2006, he was suspended for no obeying the direction of the court and intervened arrogantly during the proceeding of the court of Sh. Vipin Kumar Rai, Ld. Civil Judge, Delhi, In this way, the above said act on his part amounts to dereliction and lack of devotion to his duty which constitutes misconduct with the meaning of Rule 3 of CCS (Conduct) Rules, 1964 which makes him liable for disciplinary action under Rule 14 of CCS (CCA) Rules, 1965. He is liable for major penalty in case of found guilty in Article-I since his earlier record as mentioned above is bad as mentioned in Article-II to Article-XII.”

2. Interestingly, though the report of the Enquiry Officer was submitted way back on 17.04.2010 to the then Disciplinary Authority, however, as the statement of petitioner was not recorded as per the CCS (CCA) Rules, 1965, a fresh Enquiry Report dated 19.02.2018 was submitted by the Enquiry Officer. Then, after affording an opportunity of personal hearing to the petitioner, the Disciplinary Authority vide order dated 19.05.2018 imposed the punishment of “dismissal from service” upon the petitioner.

3. Aggrieved thereby, petitioner filed an appeal before the Appellate Authority primarily contending that the said order dated 19.05.2018 was liable to be set aside as there was an inordinate delay in completion of disciplinary proceedings. The Appellate Authority, upon considering the facts and after dealing with all the contentions raised before it, finding no merit, dismissed the appeal vide a detailed order dated 08.07.2022.

4. Thereafter, through the present writ petition, the petitioner has challenged the memorandum dated 14.11.2007, Enquiry Report dated 19.02.2018, order dated 19.05.2018 passed by the Disciplinary Authority imposing the punishment of “dismissal from service” and the order dated 08.07.2022 passed by the Appellate Authority confirming the said punishment and hasalso sought reinstatement in service with all consequential benefits including promotion/seniority along with arrears of pay.

5. Order Sheets of the present petition reveal that the petitioner sought time when it was last listed on 13.01.2023 and 23.01.2023. Thus, notice thereof was not issued to the two respondents, being High Court of Delhi and District and Sessions Judge (HQ), Tis Hazari Courts, New Delhi and the same was fixed for hearing today, when all the parties are represented through their respective counsels. We have heard learned counsels for all the parties and also perused the documents on record.

6. During the course of arguments, learned counsel for petitioner has firstly contended that there is an inordinate and unreasonable delay in culmination of the disciplinary proceedings as despite the first Enquiry Report being submitted way back on 17.04.2010 the order culminating the departmental enquiry passed by the Disciplinary Authority imposing the punishment of “dismissal from service” upon petitioner was passed only on 19.05.2018 and secondly contended that of the twelve charges framed against the petitioner, Article II to Article XII refer to his previous acts and only Article I refers to a present act, thus, the imposition of grave punishment of “dismissal from service” has been wrongly imposed as it is not commensurate and lastly contended that as there is a difference in the timing with respect to the execution of warrants of possession on 01.03.2006, the Enquiry Report dated 19.02.2018, order dated 19.05.2018 passed by the Disciplinary Authority imposing the punishment of “dismissal from service” and the order dated 08.07.2022 passed by the Appellate Authority confirming the said punishment are liable to be set aside.

7. At the outset, dealing with the issue of delay, this Court finds that the same has already been dealt by the Appellate Authority sequentially in its detailed order dated 08.07.2022 as it has been recorded that the first Enquiry Report dated 17.04.2010 submitted to the then Disciplinary Authority was kept in abeyance/ stayed vide order dated 17.02.2014 of the learned District and Sessions Judge (HQs), Delhi upon coming into effect of the Delhi District Court Establishment (Appointment and Conditions of Service) Rules, 2012 and also as the learned District and Sessions Judge (HQs), Delhi had also constituted a Committee vide order dated 17.02.2014 to look into the entire subject and suggest ways and find means to give full effect to the above mentioned notified rules and the directions of the High Court of Delhi contained in the minutes dated 06.12.2013. Then after submission of its recommendations on 18.09.2014, the learned District and Sessions Judge (HQs), Delhi vide its order dated 27.07.2017 abolished the Vigilance Branch of the office of the Administrative Civil Judge (Central) and merged it with the existing Vigilance Branch (Central) of the office of the District and Sessions Judge (HQs) and further directed all the disciplinary proceedings/ matters earlier pending with the erstwhile Administrative Civil Judge (Central), Delhi to be put up directly before the District and Sessions Judge (HQs), Delhi. Further, as the petitioner had not been examined under Rule 14(18) of the CCS (CCA) Rules, 1965, the same was remitted back to the Enquiry Officer and it was only after passing of a fresh Enquiry Report dated 19.02.2018 that the order of punishment of “dismissal from service” dated 19.05.2018 was thereafter passed immediately by the Disciplinary Authority. In view thereof, the Appellate Authority held that the delay, if any, was due to reasons beyond the control of the respondents.

8. The Appellate Authority in its order dated 08.07.2022, relying upon Secretary, Forest Department And Others vs. Abdul Rasul Chowdhury[1], and Anant R. Kulkarni vs. Y. P. Education Society And Ors.2, has also come to the conclusion that the delay in disposal of the disciplinary proceedings against the petitioner could not be held to be fatal especially keeping in view the gravity of charges. Thus, the aforesaid contention with respect to delay being prejudicial to the petitioner has already been dealt and denied by the Appellate Authority. We are in agreement with the said findings.

9. Additionally, this Court finds that, admittedly, during the same period, the petitioner was already placed under suspension vide an order dated 15.11.2008 until its revocation vide order dated 02.05.2015 in another departmental enquiry.

10. Taking into consideration the said fact between the recordal of the first Enquiry Report dated 17.04.2010 till the passing of the order dated 19.05.2018 by the Disciplinary Authority and the fact that the petitioner was under suspension during that period, i.e. with effect from 15.11.2008 till 02.05.2015, this Court is of the opinion that no prejudice could have been caused to the petitioner and he could suffer no injury.

11. As such, in view of the afore-stated facts and circumstances, reliance by the learned counsel for petitioner upon the judgment of the Hon’ble Supreme Court in Prem Nath Bali vs Registrar, High Court of Delhi[3] and upon the judgment dated 12.03.2019 of this Court in W.P.(C) 5635/2018 titled Union of India Vs Dr. M.R. Diwan & Anr. regarding delay in conducting/ concluding departmental enquiries is misconceived and being not applicable to the facts of the present case and do not have any relevance.

12. Adverting to the issue that out of the twelve charges framed, as Article II to Article XII refer to previous acts of petitioner and only Article I refers to present act of petitioner the imposition of the punishment of “dismissal from service” by the Disciplinary Authority is wrong and not commensurate thereto, the records before us reveal that the charges levelled 3 2015 (16) SCC 415 against the petitioner in Article I stand proved, more so, as in disciplinary proceedings, the charges are not to be proven beyond reasonable doubt but are instead to be proven on preponderance of probabilities. Petitioner being an employee of the Court ought to have been more careful, cautious and prudent in his approach all throughout his career, however, this Court finds that the petitioner in his career spanning across the past few decades was in the habit of repeatedly/habitually committing faults throwing all caution to the wind. The earlier acts mentioned in Article II to Article XII relating to previous acts and another disciplinary proceeding against him, no doubt, are an exhibition of his attitude and reflect his character. Considering the past antics of petitioner, all his previous acts were, rightfully, worthy of consideration at the time of imposition of the punishment of “dismissal from service” by the Disciplinary Authority, which were subsequently confirmed by the Appellate Authority. Thus, the punishment has rightly been imposed and confirmed.

13. Dealing with the last contention, of there being difference of timing with respect to the execution of warrants of possession on 01.03.2006, this being a fact-finding exercise, the power of judicial review of the orders passed against the petitioner by the Disciplinary Authority and the confirmation of the same by the Appellate Authority by this Court is limited. The petitioner, in the present circumstances, has not been able to make out any such case calling for any kind of interference. In any event, the difference in timing with respect to the execution of warrants of possession on 01.03.2006 is a pure and simple fact-finding exercise beyond the scope of judicial review, which in the facts of the present case, this Court cannot go into. The Hon’ble Supreme Court in State of Rajasthan and Others vs. Heem Singh[4], while dealing with disciplinary proceedings, albeit involving criminal proceedings, held as under:- “37. In exercising judicial review in disciplinary matters, there are two ends of the spectrum. The first embodies a rule of restraint. The second defines when interference is permissible. The rule of restraint constricts the ambit of judicial review. This is for a valid reason. The determination of whether a misconduct has been committed lies primarily within the domain of the disciplinary authority. The Judge does not assume the mantle of the disciplinary authority. Nor does the Judge wear the hat of an employer. Deference to a finding of fact by the disciplinary authority is a recognition of the idea that it is the employer who is responsible for the efficient conduct of their service. Disciplinary enquiries have to abide by the rules of natural justice. But they are not governed by strict rules of evidence which apply to judicial proceedings. The standard of proof is hence not the strict standard which governs a criminal trial, of proof beyond reasonable doubt, but a civil standard governed by a preponderance of probabilities. Within the rule of preponderance, there are varying approaches based on context and subject. The first end of the spectrum is founded on deference and autonomy – deference to the position of the disciplinary authority as a fact finding authority and autonomy of the employer in maintaining discipline and efficiency of the service. At the other end of the spectrum is the principle that the court has the jurisdiction to interfere when the findings in the enquiry are based on no evidence or when they suffer from perversity. A failure to consider vital evidence is an incident of what the law regards as a perverse determination of fact. Proportionality is an entrenched feature of our jurisprudence. Service jurisprudence has recognized it for long years in allowing for the authority of the court to interfere when the finding or the penalty are disproportionate to the weight of the evidence or misconduct. Judicial craft lies in maintaining a steady sail between the banks of these two shores which have been termed as the two ends of the spectrum. Judges do not rest with a mere recitation of the hands-off mantra when they exercise judicial review. To determine whether the finding in a disciplinary enquiry is based on some evidence an initial or threshold level of scrutiny is undertaken. That is to satisfy the conscience of the court that there is some evidence to support the charge of misconduct and to guard against perversity. But this does not allow the court to re-appreciate evidentiary findings in a disciplinary enquiry or to substitute a view which appears to the judge to be more appropriate. To do so would offend the first principle which has been outlined above. The ultimate guide is the exercise of robust common sense without which the judges’ craft is in vain.”

14. This Court cannot lose sight of the fact that in matters like the present one, it has an extremely limited scope of judicial review and can hardly go into the decision making process, that too whence there is nothing perverse therein. This Court under Article 226 of The Constitution of India can hardly re-appreciate the evidence or act as a fact-finding authority. Reference in this regard may also be made to the judgment of this Court dated 02.12.2022 in W.P.(C) 2768/2014 titled Ajay Rawat Vs Union of India & Ors. and judgment dated 22.12.2022 in W.P.(C) 14466/2022 titled Govind Singh Bhakuni vs Registrar General, High Court of Delhi and Anr.

15. In view of the aforesaid facts and circumstances involved and the punishment imposed by the Disciplinary Authority, which has been confirmed by the Appellate Authority coupled with the settled position of law qua the scope of interference in matters of judicial review, this Court finds no merit in the present writ petition.