Pranab Kumar Chattopadhyay, J.@mdashThis appeal has been preferred at the instance of the writ petitioner assailing the judgment and order dated 14th July, 2004 passed by the learned Single Judge in writ petition bearing W. P. No. 6079 (W) of 2003. Pursuant to the earlier order dated 26-03-2007, both the appeal and the connected stay application have been taken up for consideration. The appellant/writ petitioner was a Head Constable in Border Security Force (hereinafter referred to as ''BSF''). One Ranjit Mullick was his superior officer holding the rank of Subedar. The appellant and the said Ranjit Mullick were proceeded against departmentally and charge-sheets were also issued against them. The allegation against the appellant was of accepting illegal gratification to the tune of Rs. 650 from a civilian in a cigarette packet and the charge against the superior officer, Ranjit Mullick was that he connived with the appellant/writ petitioner. Subedar Ranjit Mullick was tried by General Security Force Court and the appellant herein by the Summary Security Force Court. Subedar Ranjit Mullick was, however, exonerated, but the appellant was held guilty and sentenced to simple imprisonment for six months. The said appellant was also dismissed from service.
2. Challenging the aforesaid decision a revisional application was filed by the appellant u/s 117 of the Border Security Force Act, 1968. The revisional authority rejected the said revisional application filed on behalf of the appellant herein which was thereafter challenged before this court in a writ petition. The said writ petition was ultimately, disposed of by the judgment and order dated April 23, 2002 passed by a learned Single Judge of this court whereby and whereunder the revisional authority was directed to dispose of the aforesaid revisional application afresh after giving an opportunity of hearing to the appellant/writ petitioner and by passing a reasoned order on the same.
3. In compliance with the aforesaid direction of the learned Single Judge, grievances of the appellant/writ petitioner mentioned in the said revisional application were reconsidered by the revisional authority and ultimately, the same was finally disposed of by a reasoned order which was supplied to the writ petitioner along with the forwarding letter dated 25th January, 2003 issued on behalf of the respondent No. 3 herein.
4. Challenging the said order of the revisional authority communicated under the aforesaid Memo dated 25th January, 2003, another writ petition was filed by the appellant herein which was finally disposed of by the learned Single Judge by the judgment and order under appeal dated 14th July, 2004 whereby and whereunder the said learned Single Judge dismissed the writ petition filed by the appellant herein. Assailing the said judgment and order passed by the learned Single Judge, the instant appeal has been preferred.
5. The case of the appellant herein is that no gratification was accepted by the said appellant and only a closed cigarette packet containing money was planted. Mr. L. K. Gupta, learned Senior Counsel representing the appellant referred to the recorded depositions of P. Ws., Binoy Sarkar and M. K. Gain and submits that the said P. Ws., did not see that the money was taken by the appellant herein. Mr. Gupta further submits that the appellant herein is the victim of conspiracy and the money was surreptitiously and without the knowledge of the appellant herein kept in the cigarette packet for which the appellant should not be punished. Mr. Gupta also submits that the revisional authority did not appraise itself to the detailed objections raised in this regard on behalf of the appellant herein.
6. The learned Senior Counsel of the appellant submits that the learned Single Judge categorically held that the finding of the authorities should not be interfered with unless it is a case of ''no evidence'' but the aforesaid observation cannot be held to be correct as according to the senior counsel of the appellant, in a judicial review the finding of the authority can be interfered with, if it is a perverse one and perversity cannot be merely a case of ''no evidence''.
7. The learned Senior Counsel of the appellant referred to a decision of this Hon''ble court in the case of Collector of Customs, Calcutta & Ors. vs. Biswanath Mukherjee, reported in 1974 CLJ 251 at page 313 where perversity has been explained. The relevant paragraph of the aforesaid decision is set out hereunder:
"80........... in the case of The Additional Collector of Customs & Ors. vs. Padam Kumar Agarwalla & Anr. A. N. Sen, J. on the basis of the various decisions of the Supreme Court on the point has laid down the circumstances where the Court will interfere with the Tribunal''s findings on the questions of fact on the ground of perversity in an application under Article 226 of the Constitution. Learned Judge has observed :
It is, however, equally well settled that even in a writ petition under Article 226, the Court is entitled to interfere with the finding of the Tribunal on any question of fact which the Tribunal is competent to decide, if the Court is satisfied that the finding of the Tribunal is perverse and the finding of the Tribunal is considered to be perverse, if-
(a) The Tribunal has come to the finding on no evidence.
(b) The Tribunal has based the finding on materials not admissible and has excluded relevant materials.
(c) The Tribunal has not applied its mind to all the relevant materials and has not considered the same in coming to the conclusion.
(d) The Tribunal has come to the conclusion by considering material which is irrelevant or by considering material which is partly relevant and partly irrelevant.
(e) The Tribunal has disabled itself in reaching a fair decision by some considerations extraneous to the evidence and the merits of the case.
(f) The Tribunal has based its finding upon conjectures, surmises and suspicion.
(g) The Tribunal has based the finding upon a view of the facts which could not reasonably be entertained or the facts found were such that no person acting judicially and properly instructed as to the relevant law could have found.
(h) If the Tribunal in conducting the enquiry has acted in flagrant disregard of the rules of procedure or has violated the principles of natural justice, where no particular procedure is prescribed......."
8. Mr. Gupta, learned Senior Counsel of the appellant submits that in the present case, findings and/or decisions of the authorities are totally perverse as the stand taken by the appellant herein before the authorities was not considered in an appropriate manner by the revisional authority while deciding the application submitted by the appellant herein challenging the order passed by the Summary Security Force Court. Mr. Gupta further submits that the entire proceeding becomes liable to be set aside for non-consideration of the material evidence on record. It is the specific submission of the learned Senior Counsel of the appellant that for non-consideration of the material facts the proceedings initiated against the appellant herein should be quashed with a direction to restart the said proceedings from the stage prior to the decision of the Summary Security Force Court.
9. Referring to the depositions of the witnesses Mrs. Ajeya Mitra, learned Counsel of the respondents submits that it cannot be said that there is no evidence at all against the appellant herein. Mrs. Mitra further submits that the acts and conducts of the appellant justifies the action of the respondents who have lost confidence over the appellant on valid reasons and proper grounds. Mrs. Mitra categorically submitted that in the instant case, there was total loss of confidence in the appellant herein and the respondent authorities should not be asked to deploy the appellant in guarding the border of the country considering his questionable character.
10. Going through the evidence on record we find that the first witness for prosecution HC, M.K. Gain deposed as under:
"........ When HC Swapan Sadhukhan and Subhas were about 70 to 80 yards short out of ''G'' Base Bangaon I saw Subhas Biswas giving something to HC ''G'' Swapan Sadhukhan....... After this HC ''G'' Swapan Sadhukhan told me that he has been given a cigarette packet containing some money......"
11. The second witness for prosecution, Shri Subhas Biswas also deposed :
"............................... After having tea I asked as whether I should give the amount. Swapanda told No. He told let us walk down to ''G'' Base and while moving you hand over the same to me. While moving I told that Jamai had gone to Bangladesh and therefore I could not meet. I handed over the money in a cigarette packet to Swapanda while going to ''G'' Base Bangaon......................."
12. The third witness for prosecution, Sri S. P. Tiwari specifically deposed :
"...... Thereafter, H.C. ''G'' Swapan Sadhukhan accepted his fault of accepting the money and told that now you can save me. After this HC C Swapan Sadhukhan gave complete story as to on what occasion he had taken the money from Subhas Biswas. After he had confessed, I asked him to write down his statement. He wrote his statement in Bangla language which I got down translated after coming back to my office. I hereby produce the original statement of HC ''G'' Swapan Sadhukhan in Bangla language before the Court......."
13. The fourth witness for prosecution L/NK Binay Sarkar deposed as hereunder:
".............. I saw HC M. K. Gain taking the packet of cigarette from HC ''G'' Swapan Sadhukhan. I had seen Subhas Biswas handing over the packet of cigarette to HC ''G'' Swapan Sadhukhan.................. HC M. K. Gain gave the packet of cigarette to JAD ''G\\ JAD ''G'' opened the cigarette packet in the presence of all and counted the money which was Rs. 650/-..........."
14. The appellant herein declined to cross-examine the aforesaid witnesses and, therefore, the depositions of the aforesaid witnesses remained uncontorverted. Mrs. Mitra also referred to a confessional statement of the appellant herein.
15. Mr. Gupta submits that the said confessional statement should not be taken into consideration as the same was extracted from the appellant under duress while he was in confinement and the said statement was not voluntarily made by the appellant herein. Mr. Gupta further submits that the appellant herein repeatedly denied his allegations before the court.
16. We are also not inclined to give much importance to the alleged confessional statement of the appellant herein. However, considering the depositions of the witnesses it cannot be said that there is no evidence against the appellant herein.
17. It has been repeatedly held by the Supreme Court that High Court in exercising power of judicial review cannot reappreciate the evidence as an appellate authority. In the case of
"11. By now it is a well-established principle of law that the High Court exercising power of judicial review under Article 226 of the Constitution does not act as an appellate authority. 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. Judicial review is not akin to adjudication on merit by reappreciating the evidence as an appellate authority."
18. Following the aforesaid decision of the Supreme Court we also hold that there is no scope to reassess the evidence adduced by the witnesses in the present case. This court also cannot go into the adequacy of the evidence adduced by the witnesses in order to justify the order of punishment passed by the competent authority. Considering the recorded depositions of the witnesses we find that several witnesses adduced specific evidence to the effect that the appellant herein took money in a cigarette packet from a civilian, which established the charge of accepting gratification other than legal remuneration being a public servant specially when the said appellant declined to cross-examine the witnesses who deposed against him.
19. For the reasons discussed hereinabove, we hold that the evidence on record supports the punishment awarded to the appellant herein. Mr. Gupta, learned Senior Counsel of the appellant urged before this court that the disciplinary authority cannot rely on the evidences which are only against the charge-sheeted employee and avoid those evidences which are in favour of the said employee but going through the evidence on record we find that the evidences against the appellant herein clearly established the charge levelled against him and we are unable to accept the submission of Mr. Gupta that it is a case of ''no evidence'' in respect of the charge levelled against the appellant herein.
20. Mr. Gupta also questioned the proportionality of punishment awarded to the appellant. According to Mr. Gupta, punishment awarded to the appellant/writ petitioner is shockingly disproportionate to the charge levelled against him.
21. We are unable to agree with Mr. Gupta as a serious charge of accepting illegal gratification being a public servant has been levelled against the appellant herein and established before the Summary Security Force Court.
22. For the aforementioned reasons, we are satisfied that the findings of the Summary Security Force Court cannot be said to be based on no evidence. The learned Single Judge, therefore, rightly held that in exercise of writ jurisdiction finding of fact recorded by the competent authority cannot and should not be interfered with unless it is established that the findings have been recorded in absence of any evidence.
23. In the present case, the charge levelled against the appellant has been proved before the Summary Security Force Court on the basis of the evidence on record.
24. In the aforesaid circumstances, we do not find any error or infirmity with the decision of the learned Single Judge and, therefore, we affirm the judgment and order under appeal dated 14th July, 2004 passed by the said learned Single Judge. Accordingly, we dismiss the present appeal as well as the connected application for stay being devoid of any merit.
25. There will be, however, no order as to costs. Let urgent Xerox certified copy of this judgment and order, if applied for, be given to the learned Advocates of the parties on usual undertaking.
Kalidas Mukherjee, J.
I agree.
