1) Heard Shri A.M. Tripathi, learned counsel appearing for the petitioner, learned State Counsel for the respondent no. 1 and Shri Anuj Kudesia, learned counsel appearing for the respondent nos. 2 and 3.
2) The present writ petition has been preferred for quashing the impugned order dated 06.11.1990 by which the term of training period of the petitioner was extended from one year to three years and was awarded an adverse entry. The order dated 26.09.2000 has also been challenged whereby the appeal preferred by the petitioner against the punishment order dated 06.11.1990 has been dismissed.
3) The learned counsel for the petitioner has submitted that the impugned order dated 06.11.1990 was passed in pursuance of the faulty departmental enquiry, wherein the complainants who made the allegations against the petitioner of manhandling them, were neither produced nor cross-examined during the enquiry to prove the said charges against the petitioner. Further, the petitioner in his reply to the charge-sheet is stated to have given the names of several persons to be called as defence witnesses but none of them were called by the enquiry officer. The enquiry report was not provided to the petitioner along with the show cause notice. Most of the witnesses were subordinates to the respondents and were under the influence of the enquiry officer. There is no independent witness to prove the charges levelled against the petitioner.
4) It has further been submitted that no opportunity was provided to cross examine the witnesses while the statement / version given against the petitioner must be provided to the petitioner by the enquiry officer. Thus, the whole enquiry is vitiated and it is in violation of principle of natural justice.
5) In addition, the learned counsel for the petitioner has submitted that the impugned order dated 26.09.2000 has been passed without considering the reply submitted by the petitioner.
6) It has further been contended that evidence of Shri Dwivedi is not at all reliable, as during the cross examination, it was admitted by him that he was not able to recall the date of incident hence the inference would be that alleged incident had not taken place at all as mentioned in the charge sheet. In support of his submissions, reliance has been placed upon a judgment rendered by this Court in the case of P.N. Srivastava Vs. State of U.P. and others reported in 1999 (1) L.C.D. 24 wherein it has been held, that authorities are required to act fairly by applying the principles of natural justice. Further, the delinquent official is required to be afforded reasonable opportunity to cross examine the witness and to produce the witness in his defence.
7) On the other hand, Shri Anuj Kudesia, learned counsel for the respondent nos. 2 and 3 has submitted that the petitioner during his training period at Gorakhpur had beaten the chowkidars namely, Subhash and Rajendra Prasad, who were on duty on 02.03.1988. They were also abused and harassed by him. The same was repeated by the petitioner on 04.09.1988 and 05.09.1988. A complaint in this regard was made by them against the petitioner.
8) On the representation of the petitioner the enquiry officer on 29.05.1989 asked the petitioner for making inspection of the relevant documents on 31.05.1989. The petitioner made the inspection of documents on 01.06.1989, which were to be read in support of the charges. The dates were fixed in the enquiry proceedings and after affording opportunity of hearing to the petitioner and with the consent of the petitioner the enquiry was closed.
9) Relevant extract of enquiry report is quoted hereinbelow:-
tkap dk;Zokgh dh nwljh cSBd fnukad 11-07-89 dks iwoZ fuf'pr dk;Zdze ds vuqlkj vifjgk;Z dkj.k o'k ugh gks ldh rFkk Jh tkQjh ds vuqjks/k ij fnukad% 15-07-89 dks frfFk fu/kkZfjr dh x;h D;ksfd os fiFkkSjkx<+ LFkkukUrj.k ds iwoZ tkap iwjk djus gsrq ia=kd fnukad% 11-+07-89 }kjk vuqjks/k fd;kA tkap dh nwljh cSBd fnukad% 15-07-89 dks gqbZ ,oa blds dk;Zo`r MsyhvkMZj 'khV uEcj nks esa fyfic} fd;s x;sA nwljh cSBd ds nkSjku vkjksi ds i{k esa Jh yky/kj ;kno] ,oa Jh v'kksd dqekj xokg ds :i esa mifLFkr gq;s rFkk buls iz'u iwNs x;sA Jh tkQjh }kjk nksuks xokgksa dks dzkl ,Dtkfeu fd;k x;kA vkt dh dk;Zokgh ds nkSjku Jh tkQjh dks vius cpko dk dsl izLrqr djus gsrq ekSdk fn;k x;kA Jh tkQjh us crk;k fd mUgksusa vius cpko esa iwoZ esa tks Li"Vhdj.k izLrqr fd;s gS mUgsa gh cpko dk LVsVesUV ekuk tk,A vkt dh dk;Zokgh dks vafre dk;Zokgh ekurs gq;s Jh tkQjh dh lgefr ls tkap dk;Zokgh lekIr dh x;hA
10) It is further submitted by Shri Kudesia that the two chowkidars, namely, Subhash and Rajendra Prasad who were beaten by the petitioner were working as Piece Rated Workers and later on they had left the job and thereafter their whereabouts were not known, so they could not be produced during the enquiry. The incident was proved by the persons who were the eye-witnesses of the incidents as well as by the other witnesses, who were cross examined by the petitioner.
11) As far as non supply of enquiry report along with show cause notice to the petitioner is concerned, the learned counsel for the respondents relied upon the judgment rendered by Hon'ble Supreme Court in the case of Union of India and others Vs Mohd. Ramzan Khan reproted in 1991 1 SCC 588 delivered on 20.11.1990. The impugned order has been passed prior to 20.11.1990 and that the judgment in the case of Ramzan Khan is prospective in nature.
12) It is further submitted that as far as the case of the petitioner that the enquiry officer had given statement against the petitioner, hence the whole enquiry is vitiated, it has been submitted that the enquiry officer had only narrated a fact not relating the incident in question and he had not made any statement. The enquiry officer has concluded the enquiry in the light of the evidences and statement given by the witnesses and that too after cross examination of the witnesses by the petitioner.
13) After hearing learned counsel for the respective parties, it is found that the case of the petitioner is that the witnesses produced in the departmental enquiry were the persons, who were subordinate to the enquiry officer, so their testimonies cannot be relied upon as it amounts to violation of principle of natural justice. There is no such presumption under the law. The said contention is neither acceptable nor tenable in the eyes of law.
14) As per the law settled by the Hon'ble Supreme Court vide its judgment dated 05.01.2021 rendered in the case of Deputy General Manager (Appellate Authority) and others Vs. Ajay Kumar Srivastava arising out of SLP (C) Nos. 32067-32068 of 2018, it is held that adequacy or reliability of evidence in departmental proceedings cannot be gone into before the Court/ Tribunal.
15) It is also not the case of the petitioner that the conclusion reached by the competent authority is based on no evidence at all. On the contrary the petitioner had cross examined all the witnesses produced including Sri Dwivedi, one of the eye witnesses. The petitioner had given his consent to close the enquiry proceedings. Merely by saying that witness Shri Dviwedi, during the cross examination had stated that he did not remember the date of incident could not be said that no such incidence had ever happened. The disciplinary authority reached at the conclusion after consideration of all the evidence on the record.
16) As per the judgment of the Hon'ble Supreme Court passed in the case of Union of India Vs. H.C. Goel reported in (1964) 4 SCR 718 it is held that if the conclusion reached by the disciplinary authority, it is found that it is perverse or suffers from patent error on the basis of record or based no evidence at all, in such cases only a writ of certiorari could be issued. But it is not the position in the present case. It is thus, settled that power of judicial review of the Constitutional Court is available if there is any illegality in decision making process and not on the merits of the decision itself. The interference by the Court is permissible when there is any inconsistency with the Rules of natural justice or in violation of statutory rules prescribing the mode of enquiry or finding reached by the disciplinary authority is perverse or based on no evidence.
17) The Hon'ble Apex Court in the case of Deputy General Manager (supra) has held that when a disciplinary enquiry is conducted for the alleged misconduct against a public servant, the Court is to examine and determine: (i) whether the enquiry was held by the competent authority; (ii) whether rules of natural justice are complied with; (iii) whether the findings or conclusions are based on some evidence and authority has power and jurisdiction to reach finding of fact or not. None of the aforesaid conditions are attracted in the present case.
18) It may also be observed that there cannot be a presumption that in case a witness who is examined in the enquiry is lower in rank to the enquiry officer would not give truthful and correct statement, this plea is wholly irrelevant and untenable.
19) A perusal of the enquiry report also shows that enquiry officer made no statement at all relating to the incident which is subject matter of the charge. It only makes a mention of a fact that after a few days of the then alleged incident, the Guards met him on the direction of the Accountant and they requested him to provide some protection to them. It is not concerned with the subject mater of charges as against the petitioner. The enquiry officer, it appears from the report that he had gone through the statements of the witnesses and their cross examination as well as the material on record whereupon he based his findings. That the charge against the petitioner was proved.
20) As far as the point raised about non examination of defence witnesses, the petitioner has not shown any list of witnesses submitted by him before the enquiry officer with a request that they be summoned as defence witnesses. The averment made in para 16 of the writ petition that the defence witnesses mentioned in charge sheet had not been examined, it is observed that neither there is any requirement of mentioning defence witnesses in the charge sheet nor there is any such mention about any witness to be examined in defence. As alleged in the para 16 of the writ petition no names of defence witnesses were mentioned in the reply to the charge sheet. This plea is also not correct as no such names are to be found in the reply submitted by the petitioner to the charge sheet.
21) As far as the submission of the learned counsel for the petitioner that the complainants were not called in the departmental enquiry, so the enquiry is vitiated, the said submission is also not tenable for the reason it has specifically been stated in the counter affidavit that both the complainants were working as piece rated workers and later on they had left the job and despite the best efforts, their whereabouts were not traced out, thus, they could not be produced during the enquiry. The incident was confirmed by the persons who were the eye-witness of the incident as well as by the other witnesses who were cross examined by the petitioner.
22) In view of the aforesaid discussion, it is found that the present case is not a case where there is no evidence in support of finding arrived at in the departmental enquiry. According to the Hon'ble Apex Court in the cases of Secretary, Managing Committee BSM (PG) College, Roorkee Vs. Samrat Sharma and others reported in (2019) 16 SCC 56, State of Bihar Vs. Phulpari Kumari reported in (2020) 2 SCC 130 and R.R. Parekh Vs. High Court of Gujarat and anothers reported in (2016) 14 SCC 1 as well as in Deputy General Manager (Supra), it has been held that it is a decision making process and not the decision itself which can be subject matter of judicial review. Sufficiency of evidence is not within the realm of judicial review. The standard of proof as required in a criminal trial is not the same in a departmental enquiry. The preponderance of probability is the test adopted in finding the delinquent guilty of the charge, thus, the present case does not call for any interference by this court while exercising its power conferred under Article 226 of the Constitution of India.
23) In view of the discussions made hereinabove, the writ petition is devoid of merit and is accordingly, dismissed.
Order Date :- 22.01.2021 Ashish