Mr. Pramath Patnaik, J. - In the instant writ application, the petitioner calls in question the impugned order passed by the commandant as disciplinary authority vide order dated 28.09.2007 (Annexure-7) and the order of the appellate authority dated 09.04.2008 (Annexure-8) and the revisional authority vide order dated 10.09.2008 (Annexure-9) pertaining to dismissal from services and the period of suspension from 28.09.2006 to 28.09.2007 has been treated as such.
2. The brief facts as disclosed in the writ application is that while the petitioner was continuing as constable in CISF imputation of charge was levelled against him in disciplinary inquiry held under CISF Rule under Rule 36. The charge as per the imputation of charge on 09.09.2006 at about 14.00 hrs. the petitioner boarded in black motorcycle along with person Daroga Singh reached Buridih More and it is alleged that by describing himself as CID man he stopped one tracker loaded with timber by one Kamal Kisku and demanded Rs. 5000/- and for further Rs. 500/- more he made several demands which amounts to gross indiscipline as per under C.I.S.F. Rule and the second charge it is alleged that the petitioner during his service period for gross indiscipline has been punished 24 times for small and big offences and hence in spite of being given chance to improve himself, he has failed and is in habit of being indiscipline as per the charge vide evident from Annexure-1 to the writ application. The preliminary enquiry was conducted in the presence of inquiry officer, presenting officer and the petitioner. On the basis of inquiry the final order dated 28.09.2006 passed by disciplinary authority dismissing the petitioner from the services which has been affirmed by the appellate as well as revisional authority.
3. Mr. Sarvesh Kr. Verma, learned counsel for the petitioner during course of hearing has vehemently submitted that the inquiry has not been properly conducted and the copy of enquiry report has not been given to the petitioner thereby denying him chance to defend himself violating the principle of natural justice. Learned counsel for the petitioner further submits that no second show cause has been given to the petitioner before inflicting punishment of dismissal from services thereby the valuable right has been extinguished. Learned counsel for the petitioner further submits that the action of the complainant has been doubtful and has not been cross examined. Since the complainant being a civilian ought to have reported the matter to the police but instead of, he has chosen to approach CISF authorities. Learned counsel for the petitioner further submits that the punishment inflicted on the petitioner is based on surmises and conjectures. Moreover the punishment is shockingly disproportionate and excessive. In this respect, learned counsel for the petitioner has referred to L.P.A No. 257 of 2013 order dated 27.01.2015 reported in 2015 (2) JLJR 65 (67 to 71).
4. Per contra Mr. Rajeev Sinha, Learned Additional Solicitor General on behalf of the Union of India has reiterated the submissions made in the counter-affidavit. Learned counsel for the Union of India has vehemently submitted that the memorandum of charge, which was served on the petitioner, asking him to give his reply before the inquiry officer in lieu of his defense during the departmental proceeding. Petitioner did not co-operate properly and the inquiry officer has proceeded, as per the guidelines/procedures laid down, under Rule-36 of CISF Rules, 2001, extending the petitioner, full opportunity to defend his case. It has further been submitted that during the course of departmental enquiry, the statements of 10 prosecution witnesses have been recorded by the inquiry officer. P.W.-1 Shri Kamal Kisku, during departmental enquiry, recognised the petitioner and stated that he has paid Rs. 5,000/- on 09.09.2006 to the petitioner in presence of Shri Nimai Saw, Shri Magru Saw and Shri Daroga Singh, Shri Sanjay Singh, P.W.-2 stated that the petitioner took money from Shri Kamal Kisku and informed to friends and a decision was taken to submit a complaint to CISF Officer to get his money refunded. Therefore, on the basis of evidence adduced during course of departmental enquiry, the charge-1 has been proved and on the basis of documentary evidence produced by P.W.-9, charge-II has been proved beyond doubt. A copy of findings of enquiry officer also sent to the petitioner with an opportunity to submit his written representation against the findings of the inquiry officer vide letter dated 05.09.2007 by registered post but the report has been received undelivered with the remarks of postal authority that individual refused to receive the letter. On 21.09.2007, a copy of the enquiry report submitted by the enquiry officer, had been pasted on the wall of the petitioner''s family quarter. Even then, the petitioner did not bother to submit his final representation against the enquiry report. Then, the disciplinary authority, considering the gravity of the charges well established against him vis-a-vis the material evidences on record, imposed the punishment of dismissal from services affirmed by the appellate as well as revisional authorities. Therefore, there is absolutely no infirmity in the departmental proceeding so as to call for any judicial interference. In order to buttress his submissions, learned counsel for the Union of India has referred to the following decisions as reported in:-
(i) AIR 2015 SC 545 Para 13
(ii) 2009(8) SCC 310 Para 15
(iii) 2014 (4) SCC 693 Para 21 and 22.
5. After hearing learned counsel for the respective parties at length and on perusal of the evidences on records, I am of the considered view that the petitioner has not been able to make out a case for interference due to reasons stated here in below:-
(i) It is well settled position that the High Court in exercise of its powers under Article 226/227 of the constitution of India shall not venture into re-appreciation of the evidence.
(ii) The Hon''ble Apex Court in the case of Union of India and others v. P. Gunasekaran as reported in (2015) 2 SCC 610 at paragraph 12 which is quoted here in below:-
"12. Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, re-appreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether:
(a) the enquiry is held by a competent authority;
(b) the enquiry is held according to the procedure prescribed in that behalf;
(c) there is violation of the principles of natural justice in conducting the proceedings;
(d) the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e) the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g) the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its conscience.
(iii) The Hon''ble Apex Court in the case of State of Uttar Pradesh and another v. Man Mohan Nath Sinha and another as reported in (2009) 8 SCC 310 at paragraph 15 which is quoted here in below:-
"15. The legal position is well settled that the power of judicial review is not directed against the decision but is confined to the decision-making process. The court does not sit in judgment on merits of the decision. It is not open to the High Court to re-appreciate and reappraise the evidence led before the inquiry officer and examine the findings recorded by the inquiry officer as a court of appeal and reach its own conclusions........"
6. As a logical sequitur to the reasons stated here in above complied with decision of Hon''ble Apex Court, I am of the considered opinion there is absolutely no infirmity & illegality in the impugned orders of punishment being affirmed by the appellate as well as revisional authority. Resultantly, the writ petition does not warrant any interference by this Court and the same is dismissed being devoid of any merit.
