Full Text
JUDGMENT
+ W.P.(C) 4673/2002 & CM. Nos. 7933/2002 and 7934/2002
F.S.CHAUHAN..... Petitioner
Through: In person
Through: Mr. Anil Airi, Sr. Adv. with Mr. Adarsh Tripathi and Ms. Sukanya Lal, Advs for
Respondents No.2 to 6
CM. No. 7934/2002 (for exemption)
Exemption allowed subject to all just exceptions.
Application stands disposed of.
W.P.(C) 4673/2002
1. The present petition has been filed by the petitioner with the following prayers: “It is therefore, most respectfully prayed that this Hon‟ble Court may graciously be pleased to: (a) quash the Report of Enquiry dated 13/04/2001 and 2018:DHC:7783 consequent order of dismissal of the petitioner dated 21/06/2002 passed by respondent No.6 (b) quash the order of suspension dated 14/12/96, Memorandum of Charge dated 17/12/96 and order appointing Enquiry Officer and Presenting Officer dated 6/9-1-97 passed by Shri G.P. Singh, then a Gen. Manager of respondent No.2.
(c) quash the resolution dated 2nd July 1997 of the
(d) direct the respondent No.2 to recover the cost of funds and resources of the company spent in defending the respondent No.5 and his co-accused in various courts of law in violation of section 201 of the Companies Act, 1956. (e) direct the respondent No.2 to regularize the period of service of the petitioner from 1995 onward and grant him promotion and all other consequential benefits as due to him from 1995 till the date of disposal of this writ petition according to the level of his performance exhibited by the petitioner before 1995. (f) allow the cost of litigation which the humble petitioner had to undergo along with a just compensation for the loss, damages and mental agonies which the humble petitioner and his family had to undergo. (g) pass any other order or direction in favour of the petitioner and against the respondents as deemed appropriate in the facts and circumstances of the case and in the interest of justice.”
2. In substance, the challenge in the writ petition is to the report of enquiry dated April 13, 2001 and the consequent order of dismissal of the petitioner dated June 21, 2002, which was passed pursuant to chargesheet dated December 17, 1996 issued to the petitioner.
3. The facts as noted from the writ petition are that the petitioner joined National Thermal Power Corporation (NTPC) in the year 1979. While the petitioner was working at Badarpur Thermal Power Station, he was transferred and asked to report to respondent no.5, the then General Manager of National Capital Power Project, Dadri on July 10, 1995 who in turn directed the petitioner to report to one Shri Brij Kishore, Sr. Manager (EMG) and nominated the petitioner as the coordinator for Resettlement and Rehabilitation (R&R) of the Project Affected Persons (PAPs) of a nearby village, Muthiani. It is the case of the petitioner that a group of executives of NCPP including Shri Brij Kishore, M.P.S. Bir, P.S. Soman, A.K. Atrea, Y.N.P. Sinha and K.S.S. Ajjan under the patronage of respondent No.5 were engaged in a scandal of briberies, forgeries and misappropriation of the public funds allocated for the resettlement and rehabilitation of the PAPs. It is his case that Shri Brij Kishore demanded illegal gratification from PAPs of village Muthiani for award of R&R contracts to them by exercising his influence over the petitioner. On refusal by the said PAPs to pay illegal gratification, Sh. M.P.S. Bir moved an office note dated August 17, 1995 for award of the said R&R contracts to the non-PAPs on illegal considerations in violation of the R&R policy of the company and Sh. P.S. Soman forwarded the same for recommendation of the petitioner. Thereupon, Sh. Brij Kishore, Sr. Manager (EMG), Sh. A. K. Atrea, Sr. Manager (CCD) and respondent no.5 coerced the petitioner to recommend the award of the said R&R contracts to the said non-PAPs. That on refusal of the petitioner to recommend the said R&R contracts in favour of the said non PAPs, Sh. Brij Kishrore secured a false and anonymous complaint written under his dictation by one of his subordinates, Shri Brij Kishore Gupta, Sr. Asstt. Engineer (EMG) under a fictitious name of “Jatav Samiti, Muthiani” against the petitioner under a conspiracy to implicate and to remove him from „R&R coordination‟ and thereupon to award the said contracts to the said non-PAPs in their favour, for illegal considerations. It is the case of the petitioner that in furtherance of the conspiracy, Sh. Y.N.P. Sinha, DGM (CCD) recorded false remarks on the said false complaint and respondent no.5 used the false and anonymous complaint against the petitioner as genuine, knowing the same to be false and thereby removed the petitioner from R&R Coordination and thereafter awarded the said R&R contracts to the said non-PAPs in violation of the R&R policy on illegal considerations and further subjected the petitioner to the control of the said Sh. Brij Kishore. It is the case of the petitioner that he submitted the complaint dated November 18, 1995 with a documentary evidence of commission of aforesaid forgery and fraud to respondent no.5. Respondent no.5 concealed the complaint and evidences enclosed therewith and continued to subject the petitioner to the control of Sh. Brij Kishore. It is the case of the petitioner that on realizing the collusion of respondent no.5 in the conspiracy, the complainant submitted a copy of the complaint dated November 18, 1995 to the then Director (Vigilance). The Vigilance Department investigated the matter and found Sh. P.S. Soman, Sh. M.P.S. Bir, Sh. R.C. Garg and Shri Brij Kishore Gupta, prima facie at fault in its report dated April 29, 1996, but the names of Shri Brij Kishore and respondent no.5 were omitted. On further investigation, the controlling officer of the petitioner, Sh. Brij Kihsore, and his subordinate Sh. Brij Kishore Gupta were chargesheeted but no action was taken against the others. That an aggrieved PAP filed a complaint under Section 156 (3) Cr.PC on May 22, 1996 accusing Sh. G.P. Singh, Sh. Brij Kishore, Sh. P.S. Soman, Sh. M.P.S. Bir, Sh. Y.N.P. Sinha and Sh. Brij Kishore Gupta of having committed various cognizable criminal offences in the aforesaid matter in which matter a Case Crime no. 35/1999 was registered on the orders of the Court against the said executives. On failing to get his complaint dated November 18, 1995 redressed even after the vigilance investigation, the petitioner invoked the Executive Grievance Procedure of NTPC in pursuance of which Sh. G.P. Singh, Sh. A.C. Chaturvedi and Sh. S. Manchanda styling themselves as Chairman, Member Secretary and Member of the Staff Council called the petitioner on July 20, 1996 and threatened that if the petitioner pursued the matter of his complaint dated November 18, 1995 anymore, he himself would be chargesheeted by them. It is his case that the henchmen of Sh. Brij Kishore threatened the petitioner and his family with dire consequences. Therefore, the petitioner requested the police for security vide letter dated August 26, 1996. It is his case that thereupon the petitioner submitted a representation dated September 16, 1996 to the respondent no.3 requesting for disciplinary action against respondent no.5 and his accomplices. But no action was taken and the petitioner was still subjected to the malafide control of Sh. Brij Kishore. It is the petitioner‟s case that on December 1, 1996, the Director (Operation) of the respondent no.2 company (NTPC) Sh. B.N.Ojha, called upon the petitioner for getting his arms license renewed at New Delhi on December 2, 1996. The petitioner already under the threat to his life started early in the morning at about 7.30 AM on December 2, 1996 from his residence. He deposited the weapon in police malkhana, collected all information on documents required; the power of attorney and arms license of Sh. B.N. Ojha and got his license renewed. When the petitioner handed over the renewed license back to Sh. B.N. Ojha in his office at Scope Complex, Lodhi Road New Delhi in the afternoon on December 2, 1996, he was shocked to learn from Sh. B.N. Ojha that while the petitioner was present at New Delhi, Sh. Brij Kishore alleged that he was assaulted by the petitioner at Dadri and Sh. G.P.Singh had passed an order of suspension of the petitioner.
4. It is his case that on advice of Sh. B.N. Ojha, he made a letter of denial dated December 2, 1996 stating that the allegation of Sh. Brij Kishore was false and handed over the same to respondent no.5 on December 3, 1996 even before receiving any allegation in writing. It is his case that respondent no. 5 instead of providing a copy of the complaint of Sh. Brij Kishore to the petitioner treated the said letter of denial of the petitioner as his complaint against Sh. Brij Kishore and ordered a preliminary enquiry on December 3, 1996 by Sh. K.S.S. Ajjan and placed the onus on the petitioner to prove that the allegation of Sh. Brij Kishore, which till then was not even conveyed to the petitioner, was false. On December 14, 1996, it was ordered that the petitioner would report to Sh. S. Manchanda, the then Head of Technical Services Department w.e.f said date. It is his case that Sh. K.S.S. Ajjan forced the petitioner to disclose his whereabouts and movements on December 2, 1996 before levelling any allegation against him and it appears that after that Sh. Brij Kishore framed his complaint against the petitioner, ante-dated as of December 2, 1996, to fit into the details disclosed by the petitioner. When the petitioner requested for an opportunity to make his defence, Sh. K.S.S. Ajjan told him that there was no evidence adduced by any one against him and therefore there was no need of defence. As such no witness was examined in the presence of the petitioner and the petitioner was also not allowed to produce evidence in his defence. It is the petitioner‟s contention that Sh. K.S.S. Ajjan had recorded the statement of some persons at the back of the petitioner and prepared a report of preliminary enquiry on the basis of which respondent No.5 asked and served order dated December 14, 1996 suspending the services of the petitioner.
5. The petitioner was compelled to file W.P. (C) 4785/1996 in this Court inter alia praying for quashing of the suspension dated December 14, 1996, and for a decision on his representation dated September 16, 1996. It is his case that after receiving a copy of the writ petition, respondent no.5 served a Memorandum of Charge dated December 17, 1996 on the petitioner on December 24, 1996, which compelled the petitioner to file an additional affidavit in the writ petition inter alia praying for quashing of the said Memorandum of Charge on the ground that Shri G.P. Singh, a G.M. who styled himself as „Disciplinary Authority‟, was not a „Disciplinary Authority‟ for the petitioner because the „Disciplinary Authority‟ for major penalty proceedings against the manager, E-5 under the rules was specified as „C.M.D.‟
6. It is averred that on January 9, 1997 this Court stayed the Enquiry Proceedings and directed the respondent No.3 to decide the representation dated September 16, 1996 with a reasoned order. It is the case of the petitioner that in spite of the order of stay dated January 9, 1997, respondent No.5 styled himself as a „Disciplinary Authority‟ for the petitioner and served his orders appointing one of his accomplice as Enquiry Officer and the aforesaid Shri A.K. Atrea as Presenting Officer for conducting the enquiry against the petitioner. It is averred that on April 3, 1997, this Court observed that the appeal, lay against the order of suspension to the Board of Directors / CMD under the schedule of Conduct Disciplinary and Appeal Rules of NTPC and accordingly directed the Board of Directors to decide the appeal of the petitioner against his suspension with a reasoned order. The proceedings in the enquiry against the petitioner were stayed till the appeal of the petitioner was decided by the Board, and granted liberty to the petitioner to get the writ petition revived in case he remains aggrieved from the order of the Board passed in his appeal. It is his case that there was no notice or agenda and as such nothing to suggest that any meeting of the Board of Directors was held to consider the appeal of the petitioner against his suspension and 3 out of 9 members of the Board including its Chairman were themselves the respondents in the W.P.(C) 4785/1996 and that passing an impartial decision could amount to their own indictment.
7. On July 8, 1997, a copy of a document purported as a copy of minutes of meeting of the Board dated July 2, 1997 was served on the petitioner. From the said minutes, it appears that respondent no.5 entered the room and presented a document purported by him to be a copy of CDA Rules, but different from the CDA Rules admitted by the respondents and then relied upon by this court in passing order dated April 3, 1997 in W.P.(C) 4785/1996. According to him, the respondent no.4 replaced the schedule of the CDA rules relied upon by this Court in passing its order dated April 3, 1997 by two annexures purported to be Schedule of Delegation of Power in respect of Disciplinary Matters and Modified Schedule of Delegation of Powers in respect of Disciplinary Matters arising out of all vigilance investigations. Thus, it is his case that the fabricated CDA Rules placed before the Board stipulating different levels of authorities for imposing the same penalty for the same misconduct on the same level of employees, depending merely on whether a Vigilance Officer or any other Officer of the respondent company investigated the alleged misconduct, inherently violates Article 14 of the Constitution.
8. It is his case that respondent No.4 misled the Board by saying that IOM dated July 04, 1994 which reconfirms the position that CMD is the „Disciplinary Authority‟ for Manager relates to the modified schedule of Annexure II of CDA Rules in spite of the fact that no CDA Rules were either existed or even stipulated. It is his averment that the Board directed the appropriate clarificatory memorandum to be used for post facto notification, but no such notification was ever made even after July 2, 1997. It is averred that respondent no.4 also induced the Board to pass similar orders in the matters not referred to them. According to the petitioner, the Board in the minutes has stated that the order dated April 3, 1997 of this court was not correct in holding that the appeal of the petitioner lay to them. The Board went on to pass its decision on the facts constituting the matter of the enquiry, which enquiry was yet to be conducted by one of their subordinates and thereby the outcome of the proposed enquiry. It is averred that the Board exceeded its reference and transferred the petitioner in violation of public interest, transfer policy, working requirement of the manpower, with their motives being to shield respondent no.5 and his accomplice officials because of scandal, conspiracy of briberies, forgeries and misappropriation of public funds. In substance, it is his case that the Board did not revoke the suspension of the petitioner on merits, but merely forced him and his family to physically move on transfer to Patna. He stated that this court had stayed his transfer in W.P.(C) 2971/1997 and further observed that the enquiry officer conducting the disciplinary proceedings against the petitioner was biased and he could not expect any justice from this enquiry officer and biased witnesses.
9. It is also averred that the petitioner had filed W.P.(C) 4425/1997 inter alia praying for quashing of resolution dated July 2, 1997 of the Board, for necessary action on the report of the vigilance investigation, and for grant of sanction of prosecution of the respondent no.5 and his accomplices. It is averred that the enquiry officer conducting the departmental enquiry against the petitioner, in pursuance of the Memorandum dated December 17, 1996 of Sh. G.P.Singh often fixed the venue of the enquiry in places inasmuch as 600-1600 Kms. away from the residence / workplace of the petitioner without sufficient notice and coincided the dates of enquiry with the hearings of the petitioner in the court of law at Delhi / Ghaziabad and framed incorrect record of enquiry at the back of the petitioner. It is stated that on July 9, 1998, the Enquiry Officer did not allow the defence assistant to participate, did not provide any inspection of the listed documents, did not provide copies of the statement of the management witnesses made during preliminary enquiry in spite of assurance dated March 2, 1998 and yet framed the incorrect record of examination of the management witnesses by leading questions. According to the petitioner, the Enquiry Officer himself forged the record of the examination of management witness – 4 so as to unduly support the story of the management. Thus, the petitioner submitted a complaint dated July 10, 1998 against the said forgery of evidence committed by the Enquiry Officer with a request for change of the Enquiry Officer, who had submitted the impugned enquiry report. The petitioner in his petition referred to order passed on July 6, 1999 in W.P.(C) 4785/1996, 2971/1997, 4425/1997 and CCP 387/1997, whereby this court revived the W.P.(C) 4785/1996, ordered the petitioner to file amended writ petition incorporating the challenge with reference to resolution of the Board dated July 2, 1997 and recorded that this Court has to consider the case of the petitioner and the validity of the resolution dated July 2, 1997 and held that if the petitioner ultimately succeeds in W.P.(C) 4785/1996, this Court has to consider the question whether the second respondent was justified in transferring the petitioner to Patna and all the pleas taken by the petitioner with reference to disciplinary proceedings including challenge to show cause notice and orders appointing Enquiry Officer would be available to him after conclusion of the said disciplinary proceedings. This court dismissed the W.P.(C) 2971/1997 challenging the order of transfer of the petitioner and directed the second respondent to complete the disciplinary proceedings against the petitioner on or before December 31, 1999. The court had also granted liberty to the petitioner to challenge the ultimate order if it goes against him in accordance with law. It is stated that the Enquiry Officer did not conduct any proceedings in the enquiry except on 4-5 days, did not allow inspection or provide copies of the required documents, did not render any assistance to the petitioner in conduct of his defence and did not complete the enquiry on or before December 31, 1999 and as such he filed a Contempt Petition 42/2000 on which notice was issued. It is the case of the petitioner that he challenged the dismissal of the W.P.(C) 2971/1997 in LPA No. 287/1999 in which matter the Division Bench of this Court had stayed the transfer of the petitioner from Dadri to Patna.
10. A show cause notice dated October 14, 1999 was served on the petitioner as to why his services be not terminated on the ground that he did not move on transfer from Dadri to Patna. The petitioner approached this court which stayed the operation of the show cause notice dated October 14, 1999 on November 4, 1999 in writ petition being W.P.(C) 6713/1999. It is averred that in the enquiry, the Enquiry Officer fixed the enquiry on October 29 - October 30, 1999 at Anta, Rajasthan, about 600 Kms. away from the place of duty / residence of the petitioner. It is his case, the second respondent did not pay any TA/DA. On failure of the petitioner to reach the venue, the Enquiry Officer passed an ex-parte order closing the enquiry without cross-examination of the management witnesses and without giving any opportunity of defence to the petitioner. In view of this, the petitioner had to approach this Court and the Court overruled the order dated October 30, 1999 of the Enquiry Officer vide order dated November 17, 1999 passed in W.P.(C) 6829/1999 and directed that it would be open to the petitioner to contend all his points before the Enquiry Officer and the enquiry shall be conducted in accordance with the order dated July 6, 1997 and the Rules of the respondent for conduct of the enquiry. Thereafter the Enquiry Officer conducted the enquiry from December 12, 1999 to December 23, 1999, but in violation of principles of natural justice and procedure and made no effort to complete the same within the time granted by this court. It is averred that the petitioner was made to produce his defence witness even before crossexamination of the management witnesses. The documents listed at
┌───────────────────────────────────────────────────────────────────────────────────────────────────┐ │ Sl. No. Particulars Proposition │ ├───────────────────────────────────────────────────────────────────────────────────────────────────┤ │ 1. State of Haryana vs Rattan It is well settled that in a domestic │ │ Singh, AIR 1977 SC 1512 enquiry the strict and sophisticated │ │ rules of evidence under the Indian │ │ Evidence Act may not apply. All │ │ materials which are logically probative │ │ for a prudent mind are permissible. │ │ The essence of a judicial approach is │ │ objectivity, exclusion of extraneous │ │ materials or considerations and │ │ observance of rules of natural justice. │ │ W.P.(C) No. 4673/2002 Page 85 of 94 │ │ 2018:DHC:7783 │ │ Of course, fair play is the basis and if │ │ perversity or arbitrariness, bias or │ │ surrender of independence of judgement │ │ vitiate the conclusions reached, such │ │ finding even though of a domestic │ │ tribunal, cannot be held good. │ │ The simple point is, was there some │ │ evidence or was there no evidence not in │ │ the sense of the technical rules │ │ governing regular court proceedings but │ │ in a fair common-sense way as men of │ │ understanding and worldly wisdom will │ │ accept. │ │ Likewise, the revaluation of the evidence │ │ on the strength of co-conductor‟s │ │ testimony is a matter not for the court │ │ but for the administrative tribunal. In │ │ conclusion, we do not think the courts │ │ below were right in overturning the │ │ findings of the domestic tribunal. │ │ 2. State Bank of Patiala vs S K An order passed imposing a punishment │ │ Sharma, (1996) 3 SCC 364 on an employee consequent upon a │ │ disciplinary/departmental enquiry in │ │ violation of the │ │ rules/regulations/statutory provisions │ │ governing such enquiries should not be │ │ set aside automatically. The Court or │ │ the Tribunal should enquire whether (a) │ │ the provision violated is of a substantive │ │ nature of (b) whether it is procedural in │ │ character. │ │ In the case of violation of a procedural │ │ provision, the position is this: │ │ Procedural provisions are generally │ │ meant for affording a reasonable and │ │ adequate opportunity to the delinquent │ │ W.P.(C) No. 4673/2002 Page 86 of 94 │ │ 2018:DHC:7783 │ │ officer / employee. They are, generally │ │ speaking, conceived in his interest. │ │ Violation of any and every procedural │ │ provision cannot be said to │ │ automatically vitiate the enquiry held or │ │ order passed. Except cases falling │ │ under „no notice‟, „ no opportunity‟ and │ │ „no hearing‟ categories, the complaint │ │ of violation of procedural provision │ │ should be examined from the point of │ │ view of prejudice, viz., whether such │ │ violation has prejudiced the delinquent │ │ officer / employee defending himself │ │ properly and effectively. If it is found │ │ that he has been so prejudiced, │ │ appropriate orders have to be made to │ │ repair and remedy the prejudice │ │ including setting aside the enquiry and / │ │ or the order of punishment. If no │ │ prejudice is established to have resulted │ │ therefrom, it is obvious, no interference │ │ is called for. │ │ To report, the test is one of prejudice, │ │ i.e., whether the person has received a │ │ fair hearing considering all things. │ │ Now, this very aspect can also be looked │ │ at from the point of view of directory │ │ and mandatory provisions, if one is so │ │ inclined. │ │ The ultimate test is always the same, viz. │ │ test of prejudice or the test of fair │ │ hearing, as it may be called. │ │ In other words, a distinction must be │ │ made between "no opportunity" and no │ │ adequate opportunity, i.e., between "no │ │ notice"/no hearing" and "no fair │ │ hearing", (a) In the case of former, the │ │ order passed would undoubtedly be │ │ invalid (one may call it "void" or a │ │ W.P.(C) No. 4673/2002 Page 87 of 94 │ │ 2018:DHC:7783 │ │ nullity if one chooses to). In such cases, │ │ normally, liberty will be reserved for the │ │ Authority to take proceedings afresh │ │ according to law, i.e., in accordance │ │ with the said rule (audi alteram │ │ partem). (b) But in the latter case, the │ │ effect of violation (of a facet of the rule │ │ audi alteram partem) has to be │ │ examined from the standpoint of │ │ prejudice. │ │ For the above reasons, we hold that no │ │ prejudice has resulted to the respondent │ │ on account of not furnishing him the │ │ copies of the statements of witnesses. │ │ We are satisfied that on account of the │ │ said violation, it cannot be said that the │ │ respondent did not have a fair hearing │ │ or that the disciplinary enquiry against │ │ him was not a fair enquiry. Accordingly, │ │ we allow the appeal and set aside the │ │ judgment of the High Court affirming │ │ the judgments of the Trial Court and │ │ appellate Court. The suit filed by the │ │ respondent shall stand dismissed. │ │ 3. Union of India vs Parma Nand, Its jurisdiction is circumscribed and │ │ (1989) 2 SCC 177 confined to correct errors of law or │ │ procedural error, if any, resulting in │ │ manifest miscarriage of justice. │ │ 4. Government of AP and Ors v. Its jurisdiction is circumscribed and │ │ Mohd. Nasrullah Khan (1996) 3 confined to correct errors of law or │ │ SCC 364 procedural error, if any, resulting in │ │ manifest miscarriage of justice or │ │ violation of principles of natural justice. │ │ 5. Government of TN vs A Tribunal fell into patent error in re- │ │ Rajapandian, AIR 1995 SC 561 appreciating and going into the │ │ sufficiency of evidence. It has been │ │ authoritatively settled by string of │ │ W.P.(C) No. 4673/2002 Page 88 of 94 │ │ 2018:DHC:7783 │ │ authorities of this Court that the │ │ administrative tribunal cannot sit as a │ │ Court of Appeal over a decision based │ │ on the findings of the inquiring authority │ │ in disciplinary proceedings. │ │ The Administrative Tribunal reached │ │ different conclusions from the inquiring │ │ authority on its own evaluation of the │ │ evidence. The Tribunal fell into patent │ │ error and acted wholly beyond its │ │ jurisdiction. It is not necessary for us to │ │ go into the merits of appreciation of │ │ evidence by the two authorities because │ │ we are of the view that the │ │ Administrative Tribunal has no │ │ jurisdiction to sit as an appellate │ │ authority over the findings of the │ │ inquiring authority. │ │ In Union of India v. Sardar │ │ Bahadur(1972)ILLJ1SC held as under : │ │ The standard of proof required is that of │ │ preponderance of probability and not │ │ proof beyond reasonable doubt. │ │ In Union of India vs Sardar Bahadur, │ │ held as under: │ │ The standard of proof required is that of │ │ preponderance of probability and not │ │ proof beyond reasonable doubt. │ │ Where there are some relevant │ │ materials which the authority has │ │ accepted and which materials may │ │ reasonably support the conclusion that │ │ the officer is guilty, it is not the function │ │ of the High Court exercising its │ │ jurisdiction under Article 226 to review │ │ the materials and to arrive at an │ │ independent finding on the materials. If │ │ W.P.(C) No. 4673/2002 Page 89 of 94 │ │ 2018:DHC:7783 │ │ the enquiry has been properly held the │ │ question of adequacy or reliability of the │ │ evidence cannot be canvassed before the │ │ High Court. │ │ In Union of India vs Parma Nand, held │ │ as under: │ │ Where there are some relevant │ │ materials which the authority has │ │ accepted and which materials may │ │ reasonably support the conclusion that │ │ the officer is guilty, it is not the function │ │ of the High Court exercising its │ │ jurisdiction under Article 226 to review │ │ the materials and to arrive at an │ │ independent finding on the materials. If │ │ the enquiry has been properly held the │ │ question of adequacy or reliability of the │ │ evidence cannot be canvassed before the │ │ High Court. │ │ 6. Rae Bareli KshetriyaGramin Whether the High Court would be │ │ Bank vs Bhola Nath &Ors., AIR correct in law to appreciate the │ │ 1997 SC 1908 evidence and the manner in which the │ │ evidence as examined and to record a │ │ finding in that behalf? The judicial │ │ review is not akin to adjudication of the │ │ case on merits as an appellate authority. │ │ Under these circumstances, the question │ │ of examining the evidence, as was done │ │ by the High Court, as a first appellate │ │ court, is wholly illegal and cannot be │ │ sustained. │ │ 7. High Court of Judicature at But we cannot overlook that the │ │ Bombay, through its Registry vs departmental authority (in this case the │ │ Shashikant S. Patil and Anr., Disciplinary Committee of the High │ │ (2002) 1 SCC 416 Court) is the sole judge of the facts, if │ │ the inquiry has been properly │ │ conducted. The settled legal position is │ │ that if there is some legal evidence on │ │ W.P.(C) No. 4673/2002 Page 90 of 94 │ │ 2018:DHC:7783 │ │ which the findings can be based, then │ │ adequacy or even reliability of that │ │ evidence is not a matter for canvassing │ │ before the High Court in a writ petition │ │ filed under Article 226 of the │ │ Constitution. │ │ 8. State of Mysore &Ors. vs What is fair opportunity must depend on │ │ ShivabasappaShivappaMakarpur, the facts and circumstances of each case │ │ AIR 1963 SCC 375 but where such an opportunity had been │ │ given, the proceedings are not open to │ │ attack on the ground that the enquiry │ │ was not conducted in accordance with │ │ the procedure followed in courts. │ │ But in our opinion, the purpose of an │ │ examination in the presence of a party │ │ against whom an enquiry is made, is │ │ sufficiently achieved, when a witness │ │ who has given a prior statement is │ │ recalled, that statement is put to him, │ │ and made known to the opposite party, │ │ and the witness is tendered for cross- │ │ examination by that party. In this view │ │ we must hold that the order dated July │ │ 5, 1956, is not liable to be set aside on │ │ the ground that the procedure followed │ │ at the inquiry by the Deputy │ │ Superintendent of police was in │ │ violation of the rules of natural justice. │ │ 9. B C Chaturvedi vs Union of India Whether the findings or conclusions are │ │ &Ors., (1995) 6 SCC 749 based on some evidence, the authority │ │ entrusted with the power to hold inquiry │ │ has jurisdiction, power and authority to │ │ reach a finding of fact or conclusion. │ │ But that finding must be based on some │ │ evidence. Neither the technical rules of │ │ Evidence Act nor of proof fact or │ │ evidence as defined therein, apply to │ │ W.P.(C) No. 4673/2002 Page 91 of 94 │ │ 2018:DHC:7783 │ │ disciplinary proceeding. When the │ │ authority accepts that evidence and │ │ conclusion receives support therefrom, │ │ the disciplinary authority is entitled to │ │ hold that the delinquent officer is guilty │ │ of the charge. The Court/Tribunal in its │ │ power of judicial review does not act as │ │ appellate authority to re-appreciate the │ │ evidence and to arrive at its own │ │ independent findings on the evidence. │ │ If the conclusion or finding be such as │ │ no reasonable person would have never │ │ reached, the Court/Tribunal may │ │ interfere with the conclusion or the │ │ finding, and mould the relief so as to │ │ make it appropriate to the facts of each │ │ case. │ └───────────────────────────────────────────────────────────────────────────────────────────────────┘
52. Insofar as the plea of the petitioner, that the proceedings against the petitioner have been vitiated by personal bias, as a person already accused and facing trial for framing a false complaint against the petitioner and who again made an allegation against the petitioner and cited his co-accused as a witness and another co-accused passed the order of Suspension dated December 14, 1976; issued Memo of Charge dated December 17, 1996; order appointment of Enquiry Officer dated January 04, 1997 and Presenting Officer on January 07, 1997, is concerned, no doubt the petitioner‟s letter dated November 18, 1995 became a subject matter of disciplinary proceedings against Brij Kishore and Brij Kishore Gupta, vide Memorandum‟s dated December 22, 1997 (Annexure-3) but that can‟t be a ground to hold that the proceedings against the petitioner have been vitiated. If the allegations made against the petitioner were correct, surely such a conduct needed to be enquired into, which was actually done by issuing a Charge Sheet to him. This Court shall surely see whether right procedure was followed and whether there is any evidence on record to prove the charges against the petitioner. So, the plea of the petitioner that the proceedings against him are prejudiced or vitiated is not sustainable. Even the pleas that the order of Suspension; Memo of Charge; order of appointing Enquiry Officer are illegal, are also unsustainable.
53. Insofar as the plea of the petitioner that, a co-accused having been cited as a witness, shall also vitiate the proceedings is concerned, this plea of the petitioner is directed against Brij Kishore Gupta, Sr. Assistant Engineer (EMG). The naming of Brij Kishore Gupta, who according to the petitioner was a co-accused, with Brij Kishore in the criminal proceedings, would not vitiate the Memo of Charge, inasmuch as, on a perusal of list of documents (Annexure III to the charge sheet) attached to the Charge Memo, the same refers to a letter dated August 23, 1996, written by Brij Kishore Gupta to Sr. Manager (I/C) TS. It is noted from his statement, the said letter was put to him.
54. A plea was also raised by the petitioner that the criminal proceedings against G.P. Singh (respondent No.5) have a bearing on the proceeding initiated against the petitioner. The plea was rejected as it is a case of misbehavior. The petitioner in his representation also contended that the Enquiry Officer has prejudged the issue that the criminal proceedings do not have any relevance. I am of the view, that the criminal proceedings initiated by the villagers, including against G.P. Singh, are for different allegations. The allegations against the petitioner are of assault. It is to be seen whether the charge against the petitioner is said to have been proved on the basis of evidence that has come on record.
55. Insofar as the plea of the petitioner that Enquiry Officer has forged the evidence / framed false record, I note the petitioner in his representation dated July 10, 1998 did make the allegation more specifically with regard to the evidence of PW 4 Shri Vidya Patel. It is also alleged by the petitioner that the Enquiry Officer was tutoring the witnesses on how to depose and altering or wrongly recording their statements. The plea of the petitioner may be correct / right in this regard, but it is not understood why the petitioner despite being present, did not cross examine the four MW 5. In fact, it is noted from the proceedings, despite being present, the petitioner even though signed the proceedings sheets but had not signed the statements of the witnesses. He should have, while signing the proceedings sheet, recorded his objection to the manner in which the statements were recorded. No doubt, the petitioner has expressed himself immediately on the next date by way of representation, the allegations, even if true, it has to be seen whether the statements recorded of PW 4 Vidya Patel has any bearing on the findings of the Enquiry Officer against the petitioner. That apart, this Court is of the view, the petitioner being present during the proceedings should have cross examined the witness to nullify the effect of alteration made by the Enquiry Officer to the statement made by the witness. Having not cross examined the witness, the petitioner is precluded from alleging alteration of the statement of the witness by the Enquiry Officer.
56. Apart from the above, Mr. Chauhan has also taken the following pleas in his endeavor to attack the impugned orders. These include; (i) First document listed with the Memorandum of Charge being complaint itself could not be produced in the enquiry and it‟s author MW 1 not allowed to be cross examined by the petitioner; (ii) PW 5, Mr. S. Manchanda, who granted leave to the petitioner for December 02, 1996 not allowed to be cross examined and confronted with the Casual Leave card bearing his signature and later the Enquiry Officer rejected the same in defence on a plea that it was not produced earlier; (iii) The Enquiry Officer fraudulently inserted an extraneous document in place of the listed document No.1, which did not exist and relied upon it in gross violation of the settled position of law; (iv) The Enquiry officer illegally used the report of Preliminary enquiry for corroborating the case of the management in conflict with his own orders dated July 09, 1998 and December 20, 1999, and the law; (v) The Enquiry Officer illegally framed examination in chief of the management witnesses by leading question at the back of the petitioner and did not give any opportunity to the petitioner to cross examine them, which is in disobedience of orders passed by this Court on July 06, 1999, November 19, 1999, November 15, 2000 and order dated March 02, 2001; (vi) The Enquiry Officer breached his own orders dated March 02, 1998, January 10, 2000, July 09, 1998 and December 15, 2000 for conducting cross examination of witnesses and for unduly supporting the case of the prosecution; (vii) The Enquiry Officer has made baseless presumptions and drawn absurd inferences against the petitioner contrary to the facts and evidence on record.
57. Insofar as the submission at (i) above is concerned, in substance the plea of the petitioner is that the first document listed along with the charge sheet being letter dated December 02, 1996 written by Sh. Brij Kishore, Sr. Manager (EMG) addressed to General Manager. According to Mr. Chauhan, the letter as listed in the list of documents was neither given to him nor offered for inspection. On a reference to the daily order sheet dated January 10, 2000, it is noted that Mr. Chauhan conceded that he was given inspection of a letter from Sh. Brij Kishore, Sr. Manager (EMG) bearing Reference No.08/EMG/44 dated December 02, 1996 addressed to the Sr. Manager, I/C (TSD). According to Mr. Chauhan, the document as listed at Sl. No. 1 of Annexure-3 to the Memorandum dated December 17, 1996 needed to be offered for inspection. It appears that during the enquiry, the original of the document i.e letter under reference No.08/EMG/44 dated December 02, 1996 written by Sh. Brij Kishore, Sr. Manager (EMG) to the Sr. Manager, I/C (TSD) was offered for inspection. At the insistence of the petitioner, the Enquiry Officer directed the Presenting Officer to produce the documents for inspection listed at Sl. No.1 of Annexure-3. It is a conceded position of both the parties that the document as referred to in the list of documents to the Memorandum dated December 17, 1996 i.e letter written by Sh. Brij Kishore, Sr. Manager (EMG) to the General Manager, has not been placed on record. In the Enquiry Report, the Enquiry officer records the statement of the Presenting Officer that the mentioning of the document as a letter written by Sh. Brij Kishore to the General Manager is a typographical error, which has been accepted by the Enquiry Officer. In other words, what has been relied upon by the Presenting Officer is the letter under reference No.08/EMG/44 dated December 02, 1996 written by Sh. Brij Kishore, Sr. Manager (EMG) to the Sr. Manager, I/C (TSD). Mr. Chauhan may be justified in raising an issue that the letter as stated in the list of documents at Sl. No.1 i.e letter addressed to the General Manager has not been produced, but during the enquiry, if reliance has been placed on the letter written to Sr. Manager, I/C (TSD), the plea taken by Mr. Chauhan is unmerited.
58. That apart, the charge against Mr. Chauhan is sought to be proved by producing Mr. Brij Kishore in the witness box and who has also narrated the sequence of events that had taken place on December 02, 1996, which charge in the absence of any cross examination “supposedly” stood proved against the petitioner.
59. Another plea of Mr. Chauhan was that PW[5] Mr. S. Manchanda, who had granted leave to him on December 02, 1996 was not allowed to be cross examined and confronted with „Casual Leave Card‟ bearing his signature, which was also not allowed to be produced in the enquiry, as part of defence, on the ground that the same was not produced earlier. In this regard, it may be relevant to note that the same appears to have been relied upon / introduced by the petitioner only to show that Mr. S. Manchanda had granted casual leave to the petitioner on December 02, 1996. From the record, it is seen that Mr. S. Manchanda became the Reporting Officer of the petitioner on December 04, 1996 i.e after December 02, 1996. The petitioner applied for leave for half day for November 28, 1996, half day for November 29, 1996 and the leave was sanctioned on December 09, 1996 by S. Manchanda.
60. It is the case of the petitioner that the leave was also recorded (page
1540) for December 02, 1996. In any case, Mr. Manchanda could not have granted leave for the dates prior to December 04, 1996 when he became the Controlling Officer of the petitioner. Without going into the issue, whether Mr. Manchanda had sanctioned the leave or not for December 02, 1996, suffice it would be to state that the document, which was sought to be introduced / relied upon by the petitioner, which was disallowed by the Enquiry Officer, would not have helped the case of the petitioner when admittedly such leave was sanctioned after December 02, 1996 and a preliminary enquiry had already been ordered by the Competent Authority and in fact the same was already underway on December 09, 1996. The reason for the Enquiry Officer to deny the opportunity to the petitioner to place the said document on record is the same that the same was not produced earlier. In any case, in view of my aforesaid conclusion, even if it had been produced earlier, the same would not help the case of the petitioner, and, the plea of Mr. Chauhan, is an afterthought, only to prove, that when he was on leave on December 02, 1996, the charge, which alleged to have taken place in the office shall be unsustainable. The said plea of Mr. Chauhan is unmerited.
61. Insofar as the plea of the petitioner that the Enquiry Officer fraudulently inserted an extraneous document in place of the listed document No.1, which did not exist and was relied upon in gross violation of the settled position of law is concerned, this plea has already been answered by me in the earlier paragraphs when I dealt with the plea of the petitioner that the first document listed in the Memorandum of Charge could not be produced in the enquiry. Having dealt with the same, this submission being a similar one, is also unmerited. In any case, on a perusal of the Enquiry Officer‟s report, it is seen that the Enquiry Officer had only relied upon the letter under reference No.08/EMG/44 dated December 02, 1996 written by Sh. Brij Kishore, Sr. Manager (EMG) to the Sr. Manager, I/C (TSD).
62. As far as the plea of the petitioner that the Enquiry Officer has illegally used the report of the Preliminary Enquiry for corroborating the case of the management, which is in conflict with his own orders dated July 09, 1998 and December 20, 1999 is concerned, in the proceedings dated July 09, 1998, the Enquiry Officer had rejected the plea of the petitioner for the documents related to the preliminary enquiry on the ground that the same are not part of the charge sheet. Similar was the order passed by the Enquiry Officer in the hearing dated December 20, 1999. In any case, in terms of order dated February 19, 2001, preliminary enquiry report documents were handed over to the petitioner. In fact, the list prepared thereof was acknowledged by the petitioner on February 10, 2001. So, the plea now being urged is without any merit as there is a compliance of the request made by the petitioner.
63. Insofar as the plea of the petitioner that the Enquiry Officer has illegally framed examination in chief of the management witnesses by leading questions is concerned, I have seen the examination of the management witnesses between the period July 09, 1998 and July 10, 1998. This plea of the petitioner is primarily related to the questions put by the Enquiry Officer to the PW[4] Vidya Patel, that too when the Enquiry Officer had asked Vidya Patel by referring to the registration of the vehicle in which he has alleged to have seen the petitioner by stating it as „DA‟. In this regard, I must state that the Enquiry Officer is not precluded from asking questions to the witness for the purpose of clarification. No objection was taken by the petitioner at the relevant time when the Enquiry Officer had put that question to the witness. Further, I find, the witness, in his deposition has stated that he did not see the registration number of the car and even if the said question put by the Enquiry Officer is held to be a leading question, the same would not be prejudicial to the case of the petitioner as the said statement, shall not prove, that the petitioner had assaulted Brij Kishore. That apart, the Enquiry Officer in his report has made reference only to the colour of the car and not the registration number.
64. Insofar as the plea of cross examination of the MWs by the petitioner is concerned, it is noted from the enquiry proceedings that the Division Bench of this Court in LPA NO. 287/1999 vide its order dated November 15, 2000 had directed the opening of the cross examination, which had been closed by the Enquiry Officer. The Court had also directed the enquiry to be completed within a period of 12 weeks from December 15, 2000. In other words, the enquiry was to be completed on or before March 04, 2001. Pursuant thereto, in terms of proceedings dated December 15, 2000, the Presenting Officer submitted a list of ten number of MWs, whose examination had taken place to be presented for cross examination as per the sequence. The sequence is as under; (i) Sarva Shri Atul Goyal; (2) Brij Kishore; (iii) Dr. R.K. Sharma; (iv) R.P. Patel; (v) P.S. Soman; (vi) S. Manchanda; (vii) B. Chaudhary; (viii) R.C. Garg; (ix) S.K. Dixit; (x) A.K. Gupta. The proceedings of December 15, 2000 also records that in case of extraordinary circumstances, if some witness is not able to be present on the date of enquiry, advance intimation shall be given and accordingly next witness will be present.
65. On December 15, 2000, the enquiry proceedings were adjourned for January 08, 2001 to January 12, 2001 when three MWs were to be produced by the Presenting Officer for cross examination. It appears that the enquiry proceedings could not take place during that period. The enquiry proceedings were held on January 29, 2001 and January 30, 2001 when the statement of Atul Goyal MW 2 was recorded. On January 30, 2001, the proceedings were adjourned, when MW 2 was cross examined by the Defence Assistant. Thereafter, the proceedings were held on February 19, 2001 when the Presenting Officer informed the Enquiry Officer that Atul Goyal had shown his inability to attend the enquiry proceedings on February 19, 2001 due to his official tour with the CVO and he produced the next witness Sh. Brij Kishore for cross examination. The petitioner protested to the change in the sequence of the management witness. Mr. Chauhan had referred to the order dated December 15, 2000 of the Enquiry Officer to state that till such time, the cross examination of Atul Goyal is complete, no other witness can be called for cross examination. In any case, when the proceedings were held on the same day in the post lunch session, it was decided by the Enquiry Officer that the cross examination of Brij Kishore shall be taken up on February 20, 2001 at 9.30 am. On February 20, 2001, the proceedings were held initially at 9.30 am, when Presenting Officer submitted a letter in connection with the schedule of MWs to be presented for cross examination by Charged Officer / petitioner. Vide the said letter, the Presenting Officer had given the schedule of appearances of the MWs between February 19, 2001 to February 23, 2001. In other words, he was insisting on the completion of cross examination of all the witnesses within five days. As the letter was filed in the morning of February 20, 2001 and the petitioner / DA had an issue with the schedule, it appears they wanted to file their reply to the same and were preparing the reply. I find, the Enquiry Officer was insisting upon the petitioner to cross examine Brij Kishore and to complete the same on that day itself. It was also stated by the petitioner that he was willing to proceed with the cross examination of Brij Kishor, provided an assurance was given that he would be allowed to complete the cross examination of Brij Kishore before calling the next witness and without imposing restriction of time. In his reply to the letter of Presenting Officer, the petitioner stated that the Enquiry Officer threatened him that the cross examination of Brij Kishore will be declared as closed at 6.00 pm on the same day, even though the same was not completed, which according to the petitioner shall amount to denial of sufficient opportunity of cross examination. It is noted from the proceedings that the cross examination could not take place till 12:15 hrs when the Enquiry Officer decided that the cross examination of Brij Kishore be closed. Thereafter, the enquiry was fixed at 2.30 pm on the same day for the cross examination of Dr. R.K. Sharma. In the minutes of the proceedings of February 20, 2001, while signing the same at 1.45 pm, the petitioner / DA noted “the contents of the DOS, are incorrect. The cross examination of Brij Kishore is very essential for the defence of the Charged Officer. The Charged Officer is prepared and willing to cross examine Sh. Brij Kishore if the Charged Officer is allowed to continue and complete.” There was no response of the Enquiry Officer on the request of the petitioner, which I find unreasonable. The Enquiry Officer should have permitted the cross examination without time restriction. It may so happen that the petitioner could have completed the cross examination on the same day itself. Unfortunately, the Enquiry Officer closed the cross examination of Brij Kishore at 12:15 hrs itself or at least in the forenoon session and directed further proceedings shall be held at 2.30 pm for cross examination of Dr. R.K. Sharma-MW 3. The closing of cross examination at
12.15 pm suggest that Enquiry Officer, has not kept his own words that the cross examination of Brij Kishore shall be completed within the day which surely means at least by evening. The cross examination of Brij Kishore was very important as he was the complainant, who alleged that the petitioner had assaulted him and in fact on his testimony, the charge against the petitioner had been proved.
66. That apart, it is also seen from the proceedings that the petitioner submitted a letter at 1.45 pm seeking an adjournment for short date for the reason, the father of the DA was suffering from dementia / cancer, and was advised by the Doctors to be admitted in AIIMS as early as possible, for which the DA had to leave the place of enquiry to Delhi.
67. I also find justification for the petitioner / DA to give reply to the letter filed by the Presenting Officer wherein he was insisting on the completion of cross examination in five days, contrary to what had been decided on December 15, 2000 and February 19, 2001 when no time limit was fixed for the completion of the cross examination of each of the MWs. On February 21, 2001, the petitioner submitted three letters to the Enquiry Officer. In one letter, the petitioner has stated that on December 15, 2000, it was decided by the Enquiry Officer to have examined all three witnesses in five days, to which the Charged Officer extended his full cooperation and prepared himself to complete the cross examination at the rate of three witnesses in five days. But on February 20, 2001, it was stated by the Enquiry Officer that the cross examination of MW 2 Brij Kishore shall be terminated by evening on that day. That apart, time for cross examination of ten witnesses was reduced to five days, even though 60 working days were given by the Court and the petitioner requested that he be allowed to cross examine MW 1 before other witnesses are cross examined. On that date, the cross examination of MW 3 Dr. R.K. Sharma was closed. Similarly, on subsequent dates of enquiry, the cross examination of other MWs was not done by the petitioner either on the ground that the same must take place in terms of the proceedings dated December 15, 2000 or he should be allowed to continue and complete pending cross-examination. I may state here that the stand of the petitioner with regard to the fact that four hours are not sufficient and that he would not commence with the cross unless an assurance was given to him that he would be allowed to complete it, is unreasonable. He should have started the cross examination and if he had not completed it, he could have asked for more time to finish it, as I find from the proceedings, the DWs were examined / cross examined beyond midnight. Having said that, closing of the cross examination of Brij Kishore, that too in the forenoon session only on the ground that the petitioner had not started his cross examination, is not proper and in fact had proved fatal to the petitioner as the charge against the petitioner was established against him only on the oral testimony of Brij Kishore. To this extent, the proceedings initiated against the petitioner stand vitiated, as there is a denial of reasonable opportunity to the petitioner to cross-examine Management witness. This I say so, because the letter under reference No.08/EMG/44 dated December 02, 1996 written by Sh. Brij Kishore, Sr. Manager (EMG) to the Sr. Manager, I/C (TSD), even though produced in the enquiry cannot help the case of the respondent as the said letter was not exhibited or for that matter proved by the author during the enquiry as the said letter was not even put to Brij Kishore in examination in chief and it is not the case of the respondents that other witnesses have testified having seen the petitioner assaulting Brij Kishore. To that extent, the finding of the Enquiry Officer needs to be set aside. I may state here that the Enquiry Officer has held the other charge as not proved.
68. It may be pertinent to note that the entire case against the petitioner was premised on the allegation of assault on Mr. Brij Kishore, and the proceedings were set in motion only following his own letter of complaint dated December 2, 1996. As noted above, the case against the Charged Official was proved only on the basis of Mr. Brij Kishore‟s examination-inchief. In facts of the present case, especially when said letter of complaint was not even exhibited during the subject enquiry proceedings, the opportunity to cross-examine the complainant was of utmost value to the Charged Official‟s defence. That being denied, in a most arbitrary manner, proved to be a most unfair injury to the Charged Official‟s case. The Enquiry Officer should not have been so quick to close the Charged Official‟s opportunity to cross examine the complainant, Mr. Brij Kishore. I may state here, the delay in concluding the enquiry proceedings surely, cannot be attributed to the petitioner post the order dated November 15, 2000 passed by this Court, as between December 16, 2000 to January 28, 2001, and January 31, 2001 to February 2001, the Enquiry Officer did not hold any proceedings. So, unable to hold proceedings, the Enquiry Officer, was not justified to close the cross examination, on the purported ground, that enquiry proceedings were getting delayed, as the proceedings were to be completed in 12 weeks.
69. The relevant conclusion of the Enquiry Officer proving the charge of assault is reproduced as under:- “Shri Brij Kishore, MW-1in his examination-in-chief narrates the incident of 2nd Dec, 96 for which, he submitted letter dated 2nd Dec, 96, document No.1 in the present enquiry. He states that he came little early on that day and was doing work in his official room in the workshop building. Since he was doing some important work, he did not want to be disturbed, his steno‟s room was closed from inside. Somebody knocked the door of the room opening in the gallery at about 08.25 AM and found Shri F S Chauhan, Manager (EMG). Immediately, Shri Chauhan started using filthy language and mentioned in a furious way that “YOU ARE DOING DADAGIRI AND MANIPULATING THE RECORDS”. Thereupon he said that he was doing his work and also said that Shri Chauhan could mark his attendance in the attendance register lying as usual on Steno‟s table. He immediately lost the temper and started shouting using filthy language and said “MAIN SALE TUJHE JAAN SE MAR DUNGA”. While the witness was in shock on account of threats and misbehavior and trying to recover, Shri Chauhan physically assaulted the witness and started inflicting blows with right hand. First blow struck him on the left side of the face as the steno‟s room is very small. When Shri Brij Kishore tried to save himself, Shri Chauhan inflicted another blow to him and he protected himself by right hand. Therefore, the blow caused injury to his right hand. Upon checking attendance register, he observed that Shri Chauhan did not sign the attendance register. He immediately went to GM‟s chamber to inform about assault in person. When he was going to GM‟s office in his car, he came across, Shri Chauhan who was coming out of P&A Building main gate falling on the way to GM‟s Office. After meeting GM, he went to hospital to get his right hand checked up, as it was paining. The doctor medically examined him, X-ray was taken and he was told that there is a fracture in little finger of right hand. The assault took place in Mechanical Workshop Building situated at first floor in the steno‟s room where he enters in his room. No body was around at that time. After the incident, he coming out of P&A Building gate saw Shri Chauhan. This witness also narrates the past incidents of misbehavior by Shri Chauhan. This witness has not been cross-examined by the delinquent and the details in this regard have been stated above. However, his testimony gets corroborated from the documentary evidence discussed above as well as evidence of Shri Atul Goyal, PW-2, which has also seen the delinquent at about same time.”
70. The OPD prescriptions, as relied upon by the respondents would not be conclusive against the petitioner, as the same may only prove an injury to Brij Kishore but not, that the petitioner had assaulted him. A charge of assault surely, has to be proved conclusively.
71. It is a settled position of law in terms of the judgment of the Supreme Court in CMD, Coal India Ltd. v. Anita Saha and Ors. 2011 (4) SCALE 398 and State of Punjab v. Davinder Pal Singh Bhullar and Ors. AIR 2012 SC 364 that if the initial action stands vitiated, any subsequent action thereof hall also stand vitiated.
72. Mr. Airi, during his submissions has relied upon the following judgments in support of his contention on the following proposition:- Sl. No. Particulars Proposition
1. State of Haryana vs Rattan Singh, AIR 1977 SC 1512 It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fair play is the basis and if perversity or arbitrariness, bias or surrender of independence of judgement vitiate the conclusions reached, such finding even though of a domestic tribunal, cannot be held good. The simple point is, was there some evidence or was there no evidence not in the sense of the technical rules governing regular court proceedings but in a fair common-sense way as men of understanding and worldly wisdom will accept. Likewise, the revaluation of the evidence on the strength of co-conductor‟s testimony is a matter not for the court but for the administrative tribunal. In conclusion, we do not think the courts below were right in overturning the findings of the domestic tribunal.
2. State Bank of Patiala vs S K Sharma, (1996) 3 SCC 364 An order passed imposing a punishment on an employee consequent upon a disciplinary/departmental enquiry in violation of the rules/regulations/statutory provisions governing such enquiries should not be set aside automatically. The Court or the Tribunal should enquire whether (a) the provision violated is of a substantive nature of (b) whether it is procedural in character. In the case of violation of a procedural provision, the position is this: Procedural provisions are generally meant for affording a reasonable and adequate opportunity to the delinquent officer / employee. They are, generally speaking, conceived in his interest. Violation of any and every procedural provision cannot be said to automatically vitiate the enquiry held or order passed. Except cases falling under „no notice‟, „ no opportunity‟ and „no hearing‟ categories, the complaint of violation of procedural provision should be examined from the point of view of prejudice, viz., whether such violation has prejudiced the delinquent officer / employee defending himself properly and effectively. If it is found that he has been so prejudiced, appropriate orders have to be made to repair and remedy the prejudice including setting aside the enquiry and / or the order of punishment. If no prejudice is established to have resulted therefrom, it is obvious, no interference is called for. To report, the test is one of prejudice, i.e., whether the person has received a fair hearing considering all things. Now, this very aspect can also be looked at from the point of view of directory and mandatory provisions, if one is so inclined. The ultimate test is always the same, viz. test of prejudice or the test of fair hearing, as it may be called. In other words, a distinction must be made between "no opportunity" and no adequate opportunity, i.e., between "no notice"/no hearing" and "no fair hearing", (a) In the case of former, the order passed would undoubtedly be invalid (one may call it "void" or a nullity if one chooses to). In such cases, normally, liberty will be reserved for the Authority to take proceedings afresh according to law, i.e., in accordance with the said rule (audi alteram partem). (b) But in the latter case, the effect of violation (of a facet of the rule audi alteram partem) has to be examined from the standpoint of prejudice. For the above reasons, we hold that no prejudice has resulted to the respondent on account of not furnishing him the copies of the statements of witnesses. We are satisfied that on account of the said violation, it cannot be said that the respondent did not have a fair hearing or that the disciplinary enquiry against him was not a fair enquiry. Accordingly, we allow the appeal and set aside the judgment of the High Court affirming the judgments of the Trial Court and appellate Court. The suit filed by the respondent shall stand dismissed.
3. Union of India vs Parma Nand,
Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice.
4. Government of AP and Ors v. Mohd. Nasrullah Khan (1996) 3 SCC 364 Its jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice.
5. Government of TN vs A Rajapandian, AIR 1995 SC 561 Tribunal fell into patent error in reappreciating and going into the sufficiency of evidence. It has been authoritatively settled by string of authorities of this Court that the administrative tribunal cannot sit as a Court of Appeal over a decision based on the findings of the inquiring authority in disciplinary proceedings. The Administrative Tribunal reached different conclusions from the inquiring authority on its own evaluation of the evidence. The Tribunal fell into patent error and acted wholly beyond its jurisdiction. It is not necessary for us to go into the merits of appreciation of evidence by the two authorities because we are of the view that the Administrative Tribunal has no jurisdiction to sit as an appellate authority over the findings of the inquiring authority. In Union of India v. Sardar Bahadur(1972)ILLJ1SC held as under: The standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt. In Union of India vs Sardar Bahadur, held as under: The standard of proof required is that of preponderance of probability and not proof beyond reasonable doubt. Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdiction under Article 226 to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court. In Union of India vs Parma Nand, held as under: Where there are some relevant materials which the authority has accepted and which materials may reasonably support the conclusion that the officer is guilty, it is not the function of the High Court exercising its jurisdiction under Article 226 to review the materials and to arrive at an independent finding on the materials. If the enquiry has been properly held the question of adequacy or reliability of the evidence cannot be canvassed before the High Court.
6. Rae Bareli KshetriyaGramin Bank vs Bhola Nath &Ors., AIR 1997 SC 1908 Whether the High Court would be correct in law to appreciate the evidence and the manner in which the evidence as examined and to record a finding in that behalf? The judicial review is not akin to adjudication of the case on merits as an appellate authority. Under these circumstances, the question of examining the evidence, as was done by the High Court, as a first appellate court, is wholly illegal and cannot be sustained.
7. High Court of Judicature at Bombay, through its Registry vs Shashikant S. Patil and Anr.,
But we cannot overlook that the departmental authority (in this case the Disciplinary Committee of the High Court) is the sole judge of the facts, if the inquiry has been properly conducted. The settled legal position is that if there is some legal evidence on which the findings can be based, then adequacy or even reliability of that evidence is not a matter for canvassing before the High Court in a writ petition filed under Article 226 of the Constitution.
8. State of Mysore &Ors. vs ShivabasappaShivappaMakarpur, AIR 1963 SCC 375 What is fair opportunity must depend on the facts and circumstances of each case but where such an opportunity had been given, the proceedings are not open to attack on the ground that the enquiry was not conducted in accordance with the procedure followed in courts. But in our opinion, the purpose of an examination in the presence of a party against whom an enquiry is made, is sufficiently achieved, when a witness who has given a prior statement is recalled, that statement is put to him, and made known to the opposite party, and the witness is tendered for crossexamination by that party. In this view we must hold that the order dated July 5, 1956, is not liable to be set aside on the ground that the procedure followed at the inquiry by the Deputy Superintendent of police was in violation of the rules of natural justice.
9. B C Chaturvedi vs Union of India &Ors., (1995) 6 SCC 749 Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of Evidence Act nor of proof fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to re-appreciate the evidence and to arrive at its own independent findings on the evidence. If the conclusion or finding be such as no reasonable person would have never reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
73. The aforesaid judgments clearly delineate the scope of judicial review. It is also a settled position of law, as noted from the above, what is a fair opportunity depends upon the facts and circumstances of each case. Surely, where such an opportunity has been given, the proceedings are not open to be attacked on the ground that enquiry was not conducted in accordance with the procedures followed in Courts. But in the case in hand, as I have already concluded that there was a denial of opportunity to the petitioner to defend himself in the enquiry as he was denied the opportunity of cross examining the main witness and consequently, the proceedings stand vitiated. It necessarily follows that the enquiry report dated April 13, 2001, and the order of dismissal dated June 21, 2002 are set aside.
74. The question now remains what relief the petitioner would be entitled to. I am conscious of the fact that the subject proceedings have been vitiated on a very technical ground. Normally, in such circumstances, the matter should be remanded back to the Authorities to proceed in the enquiry from the stage where the infirmity has occurred but the enquiry report is of the year 2001 and the order of dismissal is of the year 2002. Sixteen years have elapsed thereafter and the fact remains that the petitioner who has appeared in person, has enrolled himself as an Advocate and may have attained the age of superannuation as well. It would be too late in the day to remand the matter back to the respondents to proceed with the enquiry from the position where the infirmity has occurred. In the fitness of things, this Court is of the view, the petitioner shall not be entitled to any consequential benefits in the nature of back wages from the date of order of dismissal till the date he has attained the age of superannuation or has enrolled himself as an Advocate. The period of suspension shall also be treated as such but shall be entitled to all retiral benefits either on the date of superannuation or on the date when he ceases to be employee on his being enrolled as an Advocate if he has enrolled before he had actually attained the age of superannuation. The retiral benefits shall be paid within a period of two months from the date of this order. If the same are released beyond a period of two months, interest @ 9% shall accrue to the petitioner. The writ petition is disposed of. No costs. CM No. 7933/2002 (for stay) Dismissed as infructuous.
V. KAMESWAR RAO, J