Gita Mittal, J
1. The present writ petition assails the memorandum dated 19th October, 1985 issued by the Commandant of the Central Industrial Security Force (hereinafter referred to as `CISF'' for brevity) proposing to hold an inquiry against the petitioner and communicating the statement of articles of charge; imputations of misconduct and misbehaviour in respect of each article of charge.
2. The petitioner also assails the order dated 28th June, 1986 passed by the disciplinary authority accepting the findings of the inquiry officer finding the petitioner guilty of the article of charge No. I while declaring that article of charge Nos. II & III as not proven against the petitioner. A challenge is also laid to the order dated 31st October, 1986 passed by the Deputy Director General of the CISF-the appellate authority rejecting the appeal of the petitioner; the show cause notice dated 29th June, 1987 and the order dated 13th October, 1987 passed by the revisionary authority dismissing the petitioner from service.
Factual Narration
3. Before us, there is no material dispute to the factual narration. The petitioner was directly recruited as an Assistant Sub Inspector in the CISF on the 6th October, 1975. On 26th August, 1984, his meritorious service brought him promotion to the rank of sub inspector.
4. On 28th September, 1985, the fateful day, the petitioner was supervising fatigue duty for the purposes of maintenance and cleaning of the headquarters lines when he was informed by two CISF personnel, Shri T.K. Majhi and Shri D.C.M. Das, of the happenings at the Pant Stadium while a match in the Federation Games was underway in which the local police was compelled to intervene in a melee amongst the spectators. In the resulting lathicharge, some of the CISF personnel in civil dress who were also witnessing the game were injured. The on-going assault by the police was stated to be indiscriminate. Such CISF personnel in uniform on duty at the stadium, who were trying to intervene and pacify the public were stated to have been also assaulted by the police. In this process, the said Shri Majhi (who was in uniform) was assaulted and his wrist watch was taken away.
5. The material brought on record during the disciplinary enquiry conducted against the petitioner, shows that immediately on receipt of this information, the petitioner rushed to the battalion office to apprise the Commandant and the Administrative Officer concerned of the situation and to take appropriate instructions from the superiors with regard to further action. He was informed that all officers of the rank of inspector and above had gone for a meeting to the office of the Deputy Inspector General, CISF at the Bhillai Steel Plant. The petitioner tried his utmost to telephonically contact the Deputy Inspector General from the battalion office, but was unsuccessful for the reason that the telephone line was continuously engaged. The petitioner then rushed to the other telephone in the company office to contact the Deputy Inspector General but this phone line was out of order.
6. The petitioner''s decision to await instructions from the superiors resulted in extreme agitation of the CISF personnel who were performing fatigue duty at the headquarters, who started abusing the petitioner for failing to help the CISF personnel facing lathicharge at the stadium. They were practically threatening him to go to the stadium themselves to stand by the side of their colleagues who were being assaulted by the police.
7. In this background, to prevent any further provocation, the petitioner had no option but to rush to the Pant Stadium in order to ascertain the position. The petitioner was accompanied by four CISF constables and after visiting the site they returned to the headquarters within five minutes as the situation was found tense and the petitioner did not want to aggravate the same. No senior officer was still available. Consequently, the petitioner again tried to telephonically contact the office of the Deputy Inspector General. This time the petitioner was successful in getting through when he was informed by the office of the Deputy Inspector General that he stood informed of the happenings and had already left for the spot. The petitioner consequently followed the jeep of the Deputy Inspector General and made a report to the Deputy Inspector General with regard to the occurrence.
8. The petitioner has contended that in the above background, he had made due efforts to seek directions from his superiors in the matter and failed in his attempts. In the absence of any superior officer, the petitioner was duty bound to make a visit to the spot in such compelling circumstances to assess the situation as well as to pacify the agitated constables. It is submitted that the emergent nature of the situation was manifested in the injuries which had been suffered by the said Constables Majhi and Shri Das.
9. It is noteworthy that because of this incident, the petitioner was suspended from service by an order passed on 1st October, 1985 by the Commandant in exercise of powers conferred under Sub-rule 1 of Rule 30 of the Central Industrial Security Force Rules, 1969 (referred to as the ''CISF Rules, 1969'' for brevity).
10. The petitioner thereafter received a memorandum dated 19th October, 1985 informing him that the respondents proposed to hold an inquiry against him under Rule 34 of the CISF Rules, 1969 on the following charges:
Article I: That on 28-9-85 at about 1030 hours the said Shri SK Sur while performing as Hqrs Coy Comdr and while Kabaddi Tournament were going on at Pant Stadium, Sector-I, Bhilai, he withdraw a group of enrolled members of the Force, who were on fatigue duty in the lines, and rushed to the said stadium without any valid authority or permission from his superior officers or informing Control Room.
Article II: That during the aforesaid period and while leading the said group Shri S.K. Sur on arrival at Pant Stadium assaulted some of the SAF and Police personnel, who were on law and order duties there, causing them severe injuries thereby creating nuisance and an ugly scene and bringing bad name of the Force.
Article III: That during the aforesaid period and while leading the said group Shri S.K. Sur along with his group prevented the SAF and Police personnel from discharging their legitimate law and order duties at a public place and unlawfully created obstruction in their functioning the exhibiting in utmost indisciplined manner amounting to gross misconduct and dereliction to duty and thereby conducted himself as unbecoming a good member of the Armed Forces of the Union which is viewed seriously.
11. The substance of the imputations of misconduct of behaviour in respect of which the inquiry was proposed, was enclosed with the article of charges along with the list of documents and the list of witnesses by which the charges were sought to be proved. The petitioner was asked to respond to the charges within ten days of the receipt of the memorandum.
12. After consideration of the petitioner''s reply, vide an order dated 6th of November, 1985, the disciplinary authority appointed Shri K.R.N. Pillai, Assistant Commandant as the inquiry officer.
13. Testimony of sixteen witnesses on behalf of the prosecution and three witnesses in support of the defence apart from the statement of the petitioner was recorded. The inquiry officer conducted a detailed inquiry and submitted a report dated 24th June, 1986 to the disciplinary authority.
14. The inquiry officer relied on the petitioner''s admission that he had gone to the Pant Stadium with four personnel only on getting the news that the CISF personnel on duty were beaten up by police since he could not contact the DIG or any of his superior officers. For these reasons, the inquiry officer found that the charge No. I stood proved beyond doubt and it sustains.
15. So far as the charge Nos. II & III were concerned, the inquiry officer has observed that none of the prosecution witnesses had stated that the petitioner was part of the crowd which was involved in the scuffle at the stadium and he was not identified by any witnesses other than by the two police officers, who also did not state that the petitioner had indulged in any assault on the police or that he caused obstruction to the smooth functioning of the police duty. For this reason, the inquiry officer held that the afore noticed charge No. II against the petitioner could not be proved and charge No. III was not sustainable.
16. The report and the findings of the inquiry officer were accepted by the disciplinary authority and a final order dated 28th June, 1986 to this effect was passed.
17. So far as the imposition of punishment on the petitioner was concerned, the disciplinary authority held that the petitioner unnecessarily withdrew a group of personnel on his own; created nuisance and defamed the reputation of the force. Taking into consideration the past clean record of the petitioner, the disciplinary authority stated that it was taking a lenient view and consequently vide order No. V.150/4/85/Estt. III/Maj-44/522 dated 28th June, 1986, imposed the punishment of reduction of pay by two stages i.e. Rs. 428/- to Rs. 404/- w.e.f. 1st July, 1986 for a period of two years which would have an effect of postponement of future increment. The disciplinary authority also regularized the period of suspension of the petitioner from 1st October, 1985 (FN) to 28th June, 1986(AN).
18. Aggrieved by the order passed by the disciplinary authority, the petitioner filed an appeal before the Deputy Inspector General as the appellate authority.
It is noteworthy that the petitioner set up a plea of having acted in good faith and with noble intention. The appellate authority however did not find any justification in interfering with the order of punishment and held that the inquiry had been conducted as per the procedure laid down and found the imputation of bias to the inquiry officer and arbitrariness to the disciplinary authority without force. The appeal was consequently rejected by an order passed on 31st October, 1986.
19. On 6th December, 1986, the petitioner filed a revision petition assailing the order of the appellate authority. A grievance is made that this revision application was kept pending for a long time and during its pendency, the Director General of the CISF-the respondent No. 2 herein issued a show cause notice dated 29th June, 1987 to the petitioner on the finding that the punishment awarded by the commandant, CISF to the petitioner does not correspond to the delinquency committed by the petitioner. This notice issued by respondent No. 2 further stated that "withdrawal of enrolled members of the force who were on fatigue duty in the lines and rushed to Pant Stadium without any valid authority or permission of the superior officers or informing control room which subsequently put the force in an embarrassing position, is certainly an act of grave indiscipline amounting to gross misconduct and dereliction to duty and requires severe penalty."
In view of the above, the respondent No. 2 called upon the petitioner to show cause against the proposal of enhancing the punishment to that of dismissal from service on the consideration of the gravity of the misconduct.
20. The petitioner submitted a reply dated 14th July, 1987 inter alia urging that the ground on which the notice to show cause was premised, was not the subject matter of the charges against the petitioner. An objection was taken that such revision was barred by limitation, in view of Rule 49(1) of the CISF Rules, 1969 in addition to the basic plea of the petitioner that he had acted in discharge of his bounden duty.
21. The petitioner also assailed the proceedings of the departmental inquiry on the ground that they were contrary to Rule 34 of the CISF Rules, 1969. It was also pointed out that the petitioner has blemishless service of 12 years having received between 20 to 26 rewards for meritorious performance of duty and an absolutely clean record of service. It was pointed out that the memorandum issued to him was the first one in his long record of service. The petitioner had also submitted that several persons were dependent on him whom he was single handedly supporting.
22. The respondent No. 2 was of the view that the contentions of the petitioner were devoid of merit. It was further observed that rewards were granted for his good work but as he was a member of a disciplined force, the conduct alleged against him was unbecoming of a member of such a force. For this reason, it was held that the delinquency committed by the petitioner rendered him unworthy of retention in the disciplined force as it would not only put a premium on inefficiency and indiscipline but also not help to establish sound traditions for the force. For these reasons, the revisionary authority held that the delinquency was far too serious and nothing short of dismissal from service would meet the ends of justice. Consequently, by the order dated 13th of October, 1987, the punishment imposed upon the petitioner was enhanced to that of dismissal from service with effect from the date of the service of the order.
Petitioner''s contentions
23. Aggrieved by these orders, the petitioner has filed the present writ petition inter alia contending that the conduct of the petitioner was in keeping with the duty imposed on him under the statute and regulations and no misconduct could be alleged against the petitioner for performance of his bounden duty. It is contended that even if it were to be held such a charge could have been laid, the orders passed by the respondents against the petitioner are based on no evidence at all and that there is no material on record to support the allegations against the petitioner. It has been vehemently urged that the charge Nos. II & III having been found not proved, there was no wrongful loss and no wrongful gain on the part of any person. At its worst, the efforts of the petitioner to contact superior authorities and on failure to do so, proceeding to the Pant Stadium having regard to the prevalent situation at the Pant Stadium and the unrest amongst the jawans performing fatigue duty at the lines, cannot constitute any misconduct on the part of the petitioner.
24. So far as the order of appellate authority is concerned, it is inter alia submitted that the same is premised on allegations and on a finding which were not the subject matter of the allegations or the charges against the petitioner. The notice to show cause issued by the revisionary authority has been assailed on the ground that the same was beyond the period of one year from the 28th of June, 1989 when the disciplinary authority accepted the findings and was therefore barred by limitation. The petitioner assails the enhancement of the punishment imposed on him on the ground that the same was not only penal punishment which was unwarranted but the enhanced punishment was shockingly disproportionate to the gravity of allegations and charges against the petitioner.
25. The petitioner has premised his challenges on the main contention that the proceedings against him were unwarranted. The contention is that in the given facts, no charge could have been laid against the petitioner. He has asserted a manifest miscarriage of justice on the ground that his action in bona fide discharge of his statutory duty, has been construed as misconduct resulting in imposition of a major penalty of dismissal from service. The petitioner has urged that the findings against him are based on no evidence at all. It has also been urged that the appellate and revisionary authority have completely misdirected themselves in finding the petitioner guilty of such conduct with which he has not even been charged. The submission is that to the extent these findings are concerned, the same amounted to disagreement with the report of the inquiry officer. Before the appellate and the revisionary authorities arrived at such a conclusion, they were bound to have given the appropriate notice of the same in accordance with settled principles of law. The petitioner was entitled to an opportunity to respond to the tentative disagreement note before the appellate or the revisionary authorities could have proceeded to in the matter. Having failed to do so, the petitioner has contended that their action is not sustainable on grounds of violation of principles of natural justice.
Respondents'' contentions
26. Mr. Manikya Khanna, Advocate appearing for the respondents on the other hand has opposed the writ petition on several grounds. An objection is taken that the writ petition has been filed without exhausting the statutory remedy u/s 9 of the CISF Act, 1969. The further contention is that for the reason that the order enhancing the sentence was passed by the Director General, CISF, an appeal would lie to the Central Government. It is further contended that the petitioner has failed to show any grounds meriting judicial review by this Court in exercise of the extra ordinary writ jurisdiction under Article 226 of the Constitution of India of the orders passed against him. In support of this contention, reliance is placed on the judgments of the Supreme Court reported at
27. It has been lastly contended by Mr. Khanna, learned Counsel for the respondent that the punishment imposed on the petitioner was proportionate having regard to the gravity of the allegations levelled against him and in the given facts, it cannot be contended that the punishment was so disproportionate that it shocks the conscience of this Court. Learned Counsel for the respondents has placed reliance on the pronouncements in
Availability of an alternate remedy - whether operates as an absolute prohibition to maintainability of a writ petition under Article 226?
28. So far as the objections of the respondents to the maintainability of the writ petition on grounds of availability of an alternate remedy are concerned, it is noteworthy that there is no absolute prohibition to entertainment of a writ petition on the sole ground that an alternate remedy may be available under the applicable statutes. The same is a rule of convenience and would require to be applied in the facts and circumstances of the case.
29. The Constitution Bench of the Supreme Court had laid down the exceptions when writ petitions could be entertained even if an alternative remedy was available to an aggrieved party. The judgment of the Bench is reported at
9. We see considerable force in the argument of the learned Solicitor-General. We must, however, point out that the rule that the party who applies for the issue of a high prerogative writ should, before he approaches the Court, have exhausted other remedies open to him under the law, is not one which bars the jurisdiction of the High Court to entertain the petition or to deal with it, but is rather a rule which Courts have laid down for the exercise of their discretion. The law on this matter has been enunciated in several decisions of this Court but it is sufficient to refer to two cases: In
It is well-settled that when an alternative and equally efficacious remedy is open to a litigant, he should be required to pursue that remedy and not invoke the special jurisdiction of the High Court to issue a prerogative writ. It is true that the existence of another remedy does not affect the jurisdiction of the Court to issue a writ; but, as observed by this Court in
10. There is no difference between the above and the formulation by Das, C.J., in
...It must be borne in mind that there is no rule, with regard to certiorari as there is with mandamus, that it will lie only where there is no other equally effective remedy. It is well established that, provided the requisite grounds exist, certiorari will lie although a right of appeal has been conferred by statute. The fact that the aggrieved party has another and adequate remedy may be taken into consideration by the superior court in arriving at a conclusion as to whether it should, in exercise of its discretion, issue a writ of certiorari to quash the proceedings and decisions of inferior courts subordinate to it and ordinarily the superior court will decline to interfere until the aggrieved party has exhausted his other statutory remedies, if any. But this rule requiring the exhaustion of statutory remedies before the writ will be granted is a rule of policy, convenience and discretion rather than a rule of law and instances are numerous where a writ of certiorari has been issued in spite of the fact that the aggrieved party had other adequate legal remedies.
11. After referring to a few cases in which the existence of an alternative remedy had been held not to bar the issue of a prerogative writ, the learned Chief Justice added:
It has also been held that a litigant who has lost his right of appeal or has failed to perfect an appeal by no fault of his own may in a proper case obtain a review by certiorari.
12. In the result this Court held that the existence of other legal remedies was not per se a bar to the issue of a writ of certiorari and that the Court was not bound to relegate the petitioner to the other legal remedies available to him.
13. The passages in the judgments of this Court we have extracted would indicate (1) that the two exceptions which the learned Solicitor-General formulated to the normal rule as to the effect of the existence of an adequate alternative remedy were by no means exhaustive, and (2) that even beyond them a discretion vested in the High Court to have entertained the petition and granted the petitioner relief notwithstanding the existence of an alternative remedy. We need only add that the broad lines of the general principles on which the Court should act having been clearly laid down, their application to the facts of each particular case must necessarily be dependent on a variety of individual facts which must govern the proper exercise of the discretion of the Court, and that in a matter which is thus pre�eminently one of discretion, it is not possible or even if it were, it would not be desirable to lay down inflexible rules which should be applied with rigidity in every case which comes up before the Court.
These principles have been reiterated in the judgments reported at
30. A challenge was laid by way of a writ petition filed before the High Court, to an order of termination of service without issuance of a show cause notice; without conducting disciplinary proceedings and without affording any opportunity of hearing. The writ petition was rejected on the ground of availability of an alternate remedy. This rejection was set aside by the Supreme Court by its judgment reported at
5. In our view, the High Court had fallen in grave error in rejecting the writ petition on the aforesaid ground. First, such an order of termination was passed without issuing any show cause notice to the appellant and without initiating any disciplinary proceedings by the authorities and without affording any opportunity of hearing. It is well settled that a writ petition can be held to be maintainable even if an alternative remedy available to an aggrieved party where the court or the tribunal lacks inherent jurisdiction or for enforcement of a fundamental right; or if there had been a violation of a principle of natural justice; or where vires of the act were in question.
It is noteworthy that the court placed reliance on the aforenoticed judgments.
31. The objection raised by learned Counsel is required to be examined from aspect of the nature of rights of the petitioner which are involved and infringement whereof is claimed by him.
32. Article 21 of the Constitution of India mandates that no one shall be deprived of his life or liberty except in accordance with the procedure prescribed by law.
33. The orders challenged by way of the present writ petition impact the petitioner''s employment. He is the only bread earner of his extremely poor and a large family consisting of his parents, two younger brothers, wife and a son of a tender age. The Supreme Court has held in a catena of cases that the term "life" used under Article 21 of the Constitution of India includes the right to livelihood and so many other facets of life. Reference in this behalf can be made to the pronouncement of the Supreme Court reported at
32. As we have stated while summing up the petitioners'' case, the main plank of their argument is that the right to life which is guaranteed by Article 21 includes the right to livelihood and since, they will be deprived of their livelihood if they are evicted from their slum and pavement dwellings, their eviction is tantamount to deprivation of their life and is hence unconstitutional. For purposes of argument, we will assume the factual correctness of the premise that if the petitioners are evicted from their dwellings, they will be deprived of their livelihood. Upon that assumption, the question which we have to consider is whether the right to life includes the right to livelihood. We see only one answer to that question, namely, that it does. The sweep of the right to life conferred by Article 21 is wide and far reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be In accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. xxx
34. It is trite therefore that the right to livelihood which is an essential and integral part of the right to life constitutionally guaranteed under Article 21 cannot be taken away other than by a procedure established by law.
The order of dismissal from service thus directly and adversely impacts the petitioner''s right to life under Article 21. The present writ petition complaining a violation thereof is maintainable in view of the principles laid down by the Supreme Court.
35. There are additional reasons in support of the maintainability of the petition. The Supreme Court has held that a domestic tribunal holding an inquiry has to abide by rules which apply in this behalf without being unduly influenced by the strict rules of evidence and procedural law. However, even in a domestic inquiry, there may be very serious charges and an adverse verdict may result in stigmatizing the delinquent and jeopardizing his future prospects. Certainly, civil and pecuniary consequences may enure and his reputation and livelihood included in his right to life would be at stake. The observations of the Supreme Court in
16. It has been observed by this Court in
36. The petitioner also challenges the impugned orders on the submission that they are based on no material. Rules of natural justice require that charges against a person must be based on some relevant material. In this behalf, reference can be usefully made to the judgments of the courts which lay down the parameters of judicial review in matters involving disciplinary proceedings.
37. In the judgment reported at
36. This Court has the power only to examine the procedural correctness of the decision making process. It cannot embark upon appreciation of evidence to substitute its own finding of fact in place of those of disciplinary/Appellate Authority. Adequacy of evidence or reliability of evidence cannot be gone into by this Court. However, if the conclusion upon consideration of the evidence reached by the Disciplinary Authority is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued."
xxx xxx xxx
43. In a departmental enquiries although the rules of evidence and procedure by a Civil Court is not strictly applicable, in cases involving serious charges with consequences as grave as dismissal, the standard of fairness and reasonableness as interpreted and adopted by the Civil Court will apply to meet the ends of justice. Although the strictly rule of evidence is not applicable to the disciplinary proceedings, and the onus of proof also does not always lie upon the department, but depends upon the nature of charges and the nature of explanation. In the present case, the charges that are alleged against the petitioner is that because of his negligence and having not exercised no control over the activities of one of his subordinate official, the Bank was exposed to pecuniary loss and this alleged misconduct of the delinquent officer, in my opinion, must be established by cogent evidence by the management, on which objectively a finding can be given about the commission of the offence or misconduct. The minimum requirement of rules of natural justice is that, there must be some evidence which points to the guilt of the accused in respect of the charges alleged against him. It is no doubt true that in the disciplinary enquiry proceedings, the standard of proof that is required is that of preponderance of probability and not proof beyond doubt.
44. In this case, the findings of the enquiry officer is not based on any evidence which was adduced before him. It is merely based on his assumptions and presumptions. It is incumbent on the enquiry officer to indicate in his report as to what is the evidence on which he is relying upon to find that the charge- sheeted officer is guilty of the offences. In my view, the findings of the enquiry officer is based on no evidence whatsoever and therefore, the same is perverse and cannot be accepted.
38. The challenge before us is laid to an order passed as back as on 28th June, 1986 by the disciplinary authority finding the petitioner guilty of a charge and imposing punishment upon him. The petitioner has also assailed an order dated 31st October, 1986 passed by the appellate authority confirming the said order and a show cause notice dated 29th June, 1987 issued by the revisionary authority proposing to enhance the punishment imposed on the petitioner and the order dated 13th October, 1987 imposing the enhanced sentence of dismissal from service upon the petitioner. The challenge is premised inter alia W.P.(C) No. 995/1988 Page No. 19 of 69 on the ground that the proceedings were unjustified and devoid of any factual or legal basis or merit. So far as the finding on charge No. 1 is concerned, it has been contended that the same is based on no evidence at all. On the same material, while the disciplinary authority found the petitioner guilty of the charge and imposed the penalty of reduction in pay, the revisionary authority has enhanced the same to dismissal from service. The petitioner has challenged the very authority and jurisdiction of the respondent No. 2 to do so. The main objection is that the orders are in violation of principles of natural justice being premised on no material at all.
In the afore-noticed decisions, the Supreme Court has clearly held that a writ petition impugning action on the ground of violation of principles of natural justice is maintainable despite availability of an alternate remedy. For this reason as well, the objection of the respondent to the maintainability of the writ petition is misconceived and deserves to be rejected.
39. It is also noteworthy that the incident for which the petitioner was charged, occurred almost 24 years ago and this writ petition has remained pending in this Court since the year 1988, which is a period of more than 22 years. Having regard to the lapse of time alone, it cannot be today held that the alternative remedy would be efficacious and that the petitioner deserves to be non suited on the sole ground of availability of an alternative remedy. The objection raised by the respondents to this effect is therefore hereby rejected.
Whether the writ petition is beyond established grounds of judicial review?
40. So far as the challenge to the writ petition on the ground that the petitioner has failed to assail the action of the respondents on any established ground of judicial review is concerned, the parameters thereof have been laid by the Apex Court in the judgments placed by the respondents before us. Noteworthy is the pronouncement of the Apex Court reported at Government of Andhra Pradesh v. Mohd. Nasrullah Khan (supra) wherein, placing reliance on earlier pronouncements of the court on the issue raised before us, the Apex Court held as follows:
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 re-appreciating the evidence as an Appellate Authority.
12. We may now notice a few decisions of this Court on this aspect avoiding multiplicity. In
27. We must unequivocally state that the jurisdiction of the Tribunal to interfere with the disciplinary matters or punishment cannot be equated with an appellate jurisdiction. The Tribunal cannot interfere with the findings of the Inquiry Officer or competent authority where they are not arbitrary or utterly perverse. It is appropriate to remember that the power to impose penalty on a delinquent officer is conferred on the competent authority either by an Act of legislature or rules made under the proviso to Article 309 of the Constitution. If there has been an enquiry consistent with the rules and in accordance with principles of natural justice what punishment would meet the ends of justice is a matter exclusively within the jurisdiction of the competent authority. If the penalty can lawfully be imposed and is imposed on the proved misconduct, the Tribunal has no power to substitute its own discretion for that of the authority. The adequacy of penalty unless it is mala fide is certainly not a matter for the Tribunal to concern itself with. The Tribunal also cannot interfere with the penalty if the conclusion of the Inquiry Officer or the competent authority is based on evidence even if some of it is found to be irrelevant or extraneous to the matter.
13. Again, the same principle has been reiterated by this Court in
12. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion, which the authority reaches, is necessarily correct in the eye of the court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. 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 of 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 appreciate the evidence and to arrive at its own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever 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.
14. As already said, in the present case there is no allegation of violation of principles of natural justice or the inquiry being held inconsistent with the mode of procedure prescribed by the rules or regulations.
41. Learned Counsel for the respondent has taken an absolute position that this Court cannot scrutinize the evidence in the present writ petition at all and the challenge laid by the petitioner relying on evidence is untenable. The parameters of consideration by the court into a challenge to disciplinary proceedings and orders of the disciplinary authorities on this ground are well settled. In this regard, reference can usefully be made to the pronouncement of the Apex Court reported at
51. It was lastly contended by Mr. Harish N. Salve that this Court cannot reappraise the evidence which has already been scrutinised by the Enquiry Officer as also by the Disciplinary Committee. It is contended that the High Court or this Court cannot, in exercise of its jurisdiction under Article 226 or 32 of the Constitution, act as the Appellate Authority in the domestic enquiry or trial and it is not open to this Court to reappraise the evidence. The proposition as put forward by Mr. Salve is in very broad terms and cannot be accepted. The law is well-settled that if the findings are perverse and are not supported by evidence on record or the findings recorded at the domestic trial are such to which no reasonable person would have reached, it would be open to the High Court as also to this Court to interfere in the matter. In
42. In
43. The parameters of judicial review by the High Court in a writ petition under Article 226 of the Constitution of India also fell for consideration before the Supreme Court in the judgment reported at
19. While it is true that in a departmental proceeding, the disciplinary authority is the sole Judge of facts and the High Court may not interfere with the factual findings but the availability of judicial review even in the case of departmental proceeding cannot be doubted. Judicial review of administrative action is feasible and same has its application to its fullest extent in even departmental proceedings where it is found that the recorded findings are based on no evidence or the findings are totally perverse or legally untenable. The adequacy or inadequacy of evidence is not permitted but in the event of there being a finding which otherwise shocks the judicial conscience of the Court, it is a well-neigh impossibility to decry availability of judicial review at the instance of an affected person. The observations as above however do find some support from the decision of this Court in the case of
44. Learned Counsel for the respondent has relied upon
45. In High Court of Judicature at Bombay v. Shashikant S. Patil (supra), also the Supreme Court stated the parameters of judicial review into the orders of judicial authorities in para 16 laying down the following principles:
16. The Division Bench of the High Court seems to have approached the case as though it was an appeal against the order of the administrative/disciplinary authority of the High Court interference with the decision of departmental authorities can be permitted while exercising jurisdiction under Article 226 of the Constitution if such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case or if the conclusion made by the authority on the very face of it, is wholly arbitrary or capricious that no reasonable person could have arrived at such a conclusion, or grounds very similar to the above. 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 enquiry 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.
46. The grounds laid down by the Supreme Court are those on which the petitioner has challenged the impugned action and orders in the present petition. They fall squarely within the parameters and scope of permissible judicial review under Article 226 of the Constitution of India laid down by the Supreme Court and there is no bar to examination thereof by this Court.
Whether the conduct of the petitioner tantamounted to misconduct inviting disciplinary proceedings
47. The petitioner''s further submission is that even if such actions of the petitioner in visiting the stadium with about four CISF personnel was to be held against him, the same at best was overzeal in performance of duty. It is submitted that the petitioner''s actions flowed from his sense of devotion to duty and responsibility and that, at their worst, it could only be contended that there was an error in judgment in proceeding in the manner in which he did. The petitioner''s contention is that such actions could never be construed as misconduct inviting disciplinary action against the petitioner.
48. The petitioner has, therefore, raised a basic question as to what is the nature of conduct which could be construed as misconduct inviting disciplinary proceedings and penalty against him. The expression `Misconduct'' is not defined under the CISF Act, 1969. It is well established that in case a term has not been statutorily defined, guidance from the meaning obtainable in ordinary and common parlance may be taken and the word has to be understood in its ordinary dictionary meaning. Since it is difficult to give an exhaustive definition of what amounts to misconduct, the ordinary meaning of the expression "misconduct" in various dictionaries may be considered.
49. Legal dictionaries have also defined ''misconduct''. In P. Ramanatha Aiyar''s The Law Lexicon (Second Edition 1997) has extensively revised and enlarged at page 1238 the meaning of ` misconduct'' as follows:
The term "misconduct" implies a wrongful intention, and not a mere error of judgment, Misconduct is not necessarily the same thing as conduct involving moral turpitude. The word misconduct is a relative term, and has to be construed with reference to the subject-matter and the context wherein the term occurs, having regard to the scope of the Act or statute which is being construed. Misconduct literally means wrong conduct or improper conduct. In usual parlance, misconduct means a transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand and carelessness, negligence and unskilfulness are transgressions of some established, but indefinite, rule of action, where some discretion is necessarily left to the actor. Misconduct is a violation of definite law; carelessness or abuse of discretion under an indefinite law. Misconduct is a forbidden act; carelessness, a forbidden quality of an act and is necessarily indefinite. Misconduct in office may be defined as unlawful behaviour or neglect by a public official by which the rights of a party have been affected.
The word "misconduct" is a sufficiently wide expression and it covers conduct which in any way renders a man unfit for his office or is likely to tamper with or embarrass the administration. In this sense it is grossly improper or unbecoming conduct in public life and may also become misconduct and may render an officer liable to disciplinary action therefor.
50. In Black''s Law Dictionary, Sixth Edition, "Misconduct" is defined at page 999 as follows:
"A transgression of some established and definite rule of action, a forbidden act, a dereliction from duty, unlawful behaviour, wilful in character, improper or wrong behaviour, its synonyms are misdemeanour, misdeed, misbehaviour, delinquency, impropriety, mismanagement, offence, but not negligence or carelessness."
"Misconduct in office" has been defined as:
"Any unlawful behaviour by a public officer in relation to the duties of his office, wilful in character. The term embraces acts which the office holder had no right to perform, acts performed improperly, and failure to act in the face of an affirmative duty to act."
51. In the Law Lexicon by Shri P.M. Bakshi, Volume 2, (Second edition 2005) at page number 1693, the following definition is to be found:
MISCONDUCT "Misconduct" as described in Batt''s Law of Master and Servant (4th Edition, p. 63) "comprises positive acts and not mere neglect or failure.
As per the definition of the word in Ballentine''s Law Dictionary (1948 Edition) is: "As transgression of some established and definite rule of action, where no discretion is left, except what necessity may demand clearly it is a violation of definite law; a forbidden act. It differs from carelessness".
52. In the Legal Glossary by the Government of India, 2001 edition at page 212, "misconduct" has been defined as follows:
misconduct: malfeasance; improper conduct
53. The New Lexicon Webster''s Dictionary of the English language at page 638, 1988 edition has defined the term "misconduct" as follows:
mis-con-duct - bad management, behavior improper according to some code, to mismanage, to conduct (oneself) improperly
54. The Words and Phrases Dictionary Permanent Edition, Volume 27, 2003 at page 329 has defined the term "misconduct in office" as follows:
Misconduct in office" includes such acts as amount to a breach of the good faith and of the right action that are tacitly required of all officers.
At page 331, it defines the expression "misconduct in office" as follows:
The phrase "misconduct in office" includes any willful malfeasance, misfeasance, or nonfeasance in office, and means any act or omission in breach of duty of public concern by person who has accepted public office provided his act is willful and corrupt and is not judicial. "Malfeasance" is the performance of that which an officer has no authority to do and is positively wrong or unlawful. "Misfeasance" by an officer is the performance in a wrongful manner of that which the law authorizes or requires him to do and "nonfeasance" by an officer is the substantial failure to perform duty.
At page 332, it defines the expression "official misconduct" or "misconduct in office" as follows:
Official misconduct" or "misconduct in office" includes doing unlawful act "(malfeasance)," doing lawful act in unlawful manner "(Misfeasance)," and failing to perform act required by law or duties of office "(nonfeasance)," but does not include errors in judgment, acts done in good faith, or good faith exercise of discretion.
This dictionary has also defined "misconduct or malfeasance in public office" at page 334 in the following terms:
MISCONDUCT OR MALFEASANCE IN PUBLIC OFFICE - "Misconduct or malfeasance in public office" in its penal sense is not merely error in judgment or departure from sound discretion, but the act, omission, or neglect must be willful, corrupt, and amount to a breach of duty legally required by one who has accepted public office.
55. The judgment of the Supreme Court reported at
9. Competence for the post, capability to hold the same, efficiency requisite for a post, ability to discharge function attached to the post, are things different from some act or omission of the holder of the post which may be styled as misconduct so as to incur the penalty under the rules. Failure to come up to the highest expectations of an officer holding a responsible post or lack of aptitude or qualities of leadership would not constitute failure to maintain devotion to duty, An act or omission contrary to or in breach of prescribed rules of conduct would constitute misconduct for disciplinary proceedings. It is, however, difficult to believe that lack of efficiency, failure to attain the highest standard of administrative ability while holding a high post would themselves constitute misconduct. If it is so, every officer rated average would be guilty of misconduct. Charges in this case as stated earlier clearly indicate lack of efficiency, lack of foresight and indecisiveness as serious lapses on the part of the respondent. These deficiencies in personal character of personal ability would not constitute misconduct for the purpose of disciplinary proceedings.
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11. If a servant conducts himself in a way inconsistent with due and faithful discharge of his duty in service, it is misconduct [see Pierce v. Foster 17 QB 536. A disregard of an essential condition of the contract of service may constitute misconduct [see Laws v. London Chronicle (Indicator Newspapers) [1959] 1 WLR 698. This view was adopted in Shardaprasad Onkarprasad Tiwari v. Divisional Superintendent, Central Railway, Nagpur Division, Nagpur 61 Bom. L.R. 1596 and Satubha K. Vaghela v. Moosa Raza 10 G.L.R. 23. The High Court has noted the definition of misconduct in Stroud''s Judicial Dictionary which runs as under:
Misconduct means, misconduct arising from ill motive; acts of negligence, errors of judgment, or innocent mistake, do not constitute such misconduct.
12. The High Court was of the opinion that misconduct in the context of disciplinary proceeding means misbehavior involving some form of guilty mind or mens rea. We find it difficult to subscribe to this view because gross or habitual negligence in performance of duty may not involve mens rea but may still constitute misconduct for disciplinary proceedings.
13. Having cleared the ground of what would constitute misconduct for the purpose of disciplinary proceeding, a look at the charges framed against the respondent would affirmatively show that the charge inter alia alleged failure to take any effective preventive measures meaning thereby error in judgment in evaluating developing situation.
56. This very issue has been the subject matter of consideration in other judicial precedents as well. In
6. Thus it could be seen that the word ''misconduct'' though not capable of precise definition, its reflection receives its connotation from the context, the delinquency in its performance and its effect on the discipline and the nature of the duty. It may involve moral turpitude, it must be improper or wrong behaviour; unlawful behaviour, wilful in character; forbidden act, a transgression of established and definite rule of action or code of conduct but not mere error of judgment, carelessness or negligence in performance of the duty; the act complained of bears forbidden quality or character. Its ambit has to be construed with reference to the subject-matter and the context wherein the term occurs, regard being had to the scope of the statute and the public purpose it seeks to serve. The police service is a disciplined service and it requires to maintain strict discipline. Laxity in this behalf erodes discipline in the service causing serious effect in the maintenance of law and order.
57. This Court had occasion to construe the meaning of the expression "misconduct" in a pronouncement dated 27th August, 2002 in WP (C) No. 5552/2002 Tara Chand v. Union of India. The Division Bench of this Court placed reliance on a pronouncement of the Calcutta High Court reported at 1994 (2) CLJ 456 Probodh Kumar Bhowmick v. University of Calcutta and Ors. and held as follows:
14 In Probodh Kumar Bhowmick v. University of Calcutta and Ors. 1994 (2) CLJ 456, it was observed:
14. `Misconduct'', inter alia, envisages breach of discipline, although it would not be possible to lay down exhaustively as to what would constitute conduct and indiscipline, which, however, is wide enough to include wrongful omission or commission whether done or omitted to be done intentionally or unintentionally. It means, "improper behaviour; intentional wrong doing on deliberate violation of a rule of standard or behaviour":
Misconduct is a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand; it is a violation of definite law, a forbidden act. It differs from carelessness. Misconduct even if it is an offence under the Indian Penal Code is equally a misconduct.
15. Even in industrial laws, acts of misconduct specified in standing order framed under Industrial Employment (Standing Order) Act, 1946 is not treated to be exhaustive. Various misconducts specified in Clause 14(3) of Model Standing Order are merely illustrative.
16. In (5)
17. Even in the absence of rules specifying misconduct, it would be open to the employee to consider reasonably what conduct can be properly treated as misconduct.
See (6) W.M. Agnani v. Badri Das reported in (1963) 1 LLJ 684 at 690.
58. It, therefore, needs no further elaboration that to constitute misconduct there must be an element of that which is forbidden and impropriety of conduct in the actions alleged against a person; His actions must be wilful and a transgression of established and definite rule of action or code of conduct. An unintentional error of judgment arising out of a misplaced zeal in performance of duty would certainly not fall within the definition of misconduct.
59. The petitioner has pointed out that on 28th September, 1985, no person of the rank of inspector or above was available at the battalion headquarters for the reason that they were all in a meeting at the DIG office. As per the chargesheet, the petitioner was performing duties as the Headquarters Company Commandant. The inquiry report dated 24th of June, 1986 has found that on 28th September, 1995, the petitioner was the Company Commander, Headquarters Company and that he was supervising the fatigue duties of few personnel. These statements clearly suggest that the petitioner was in fact in the position of authority on 28th September, 1986 and was involved in supervising the personnel when information of the unprovoked and unforeseen happening in the stadium was received by him. There is no dispute at all to this position.
60. The petitioner has contended that the appellate authority has himself suggested that such conduct as would be reasonable in the given facts and circumstances and that the petitioner has in fact acted as per the same. The petitioner has submitted at length that his conduct was not only natural and normal but that he has acted in discharge of his statutory duties. Being in a leadership position, the petitioner was expected and required to take initiative having regard to the uncontrollable situation of which he was informed. He acted to the best of his capacity and ability in understanding as to what a person incharge would do in such circumstances.
61. In the counter affidavit which has been filed before this Court, the respondents have clearly stated that no superior officer above the rank of inspector was available. It has further been asserted that the Pant Stadium situated at Bhillai, Madhya Pradesh was within the security jurisdiction of the Central Industrial Security Force (CISF). According to the respondents, the same was not within the law and order jurisdiction of the CISF as law and order is the state subject. In para 15 of the counter affidavit, the respondents have also admitted that the petitioner did not take any part in the assault when they state that:
The averments made in para 15 are wrong and denied. Though the petitioner did not take any part in the assault but the petitioner took the lead in doing so by his subordinates without any valid permission/information of the superiors.
62. As per the counter affidavit filed by the respondents, the action of the respondents against the petitioner is premised on an assertion of PW-2 Shri Bhagwan Das Beri, to the effect that the petitioner has instigated the CISF jawans and his behaviour has made the matter more complicated resulting in the confrontation. However, an examination of the statement of PW-2 in the record placed before us and extracted in the inquiry report dated 2nd June, 1986 would show that the said Sh. Beri does not refer to the petitioner or any instigation by him.
63. It is in evidence that there was a clash in which members of the public who were spectators at the match were involved. The police took action. In this incident the CISF as well as police personnel received injuries. The evidence and the statement of the petitioner disclosed that he went to the site of the incident with personnel to assess the situation and returned to the battalion office whence he again made efforts to contact the DIG and his superiors.
64. That the situation was so serious, is evident from the fact that the Deputy Inspector General had himself felt the need to rush to the spot rather than delegating the same to a subordinate.
65. It is in evidence that the petitioner''s first visit to the stadium was so unobtrusive, that other than the two interested police witnesses who stand disbelieved by the authorities, the other fourteen witnesses clearly stated that they had not seen the petitioner at the site at the time of the incident. On the contrary, it is in the evidence of PW 11- Shri Y.P. Singh and PW 3- Shri Subhash Chhiber, Asstt. Sports Officer, Bhilai Steel Plant that the petitioner was seen at the site in uniform only after the arrival of the DIG, that too actively controlling the crowd and using his whistle in the process of restoring some order to the situation.
66. In this background, even it were to be accepted that the action of the petitioner in going to the Pant Stadium to assess the situation was without authority, certainly, the same was its worst, an error of judgment on his part. Even this issue have been vehemently disputed by the petitioner who has pointed out that protection and security of the property which is assigned for this purpose to the CISF is relatable to the law and order jurisdiction. It is contended that in this behalf, the CISF Act stands amended and its personnel have been conferred with the specific power which has been conferred upon the police authority under the Code of Criminal Procedure.
67. Section 11(1)(i) of the Central Industrial Security Force Act, 1968 has conferred power on the members of the force to arrest any person who voluntarily cause hurt to, or attempts voluntarily to cause hurt to, or wrongfully restrains or attempts wrongfully to restrain or assaults, or threatens to assault, or uses or attempts to use criminal force, to any employee u/s 10(d) or any other member of the force in discharge of his duty as such employee or in the execution of his duty as such member or in consequences or anything done or admitted to be done by him in the lawful discharge of his duty as such member. Assaulting the CISF constables on duty may also therefore be a penal offence within the meaning of the same u/s 353 of the Indian Penal Code.
68. Learned Counsel for the petitioner has contended that the petitioner was in fact acting in discharge of his assigned duties. It is submitted that as a member of the disciplined force as the CISF, the petitioner is required to ensure protection of the property of the assigned industrial establishment. The Pant Stadium was one of the establishment which was under the protection of the petitioner''s deployment. At the same time, on the relevant date, the petitioner was functioning as the company commander on account of the incumbent of this appointment being not available. The petitioner thus was required to exercise control even over the personnel of the CISF personnel.
69. So far as the duties which the petitioner was required to perform are concerned, our attention is drawn to the provisions of Rule 3 of the Central Civil Service (Conduct) Rules, 1964 which provides the following functions and duties of every Government Servant:
3. General
(1) Every Government servant shall at all times--
(i) maintain absolute integrity;
(ii) maintain devotion to duty; and
(iii) do nothing which is unbecoming of a Government servant.
(2) (i) Every Government servant holding a supervisory post shall take all possible steps to ensure the integrity and devotion to duty of all Government servants for the time being under his control and authority;
(ii) No Government servant shall, in the performance of his official duties, or in the exercise of powers conferred on him, act otherwise than in his best Judgment except when he is acting under the direction of his official superior;
(iii) The direction of the official superior shall ordinarily be in writing. Oral direction to subordinates shall be avoided, as far as possible. Where the issue of oral direction becomes unavoidable, the official superior shall confirm it in writing immediately thereafter;
(iv) A Government servant who has received oral direction from his official superior shall seek confirmation of the same in writing as early as possible, whereupon it shall be the duty of the official superior to confirm the direction in writing.
Explanation I: A Government servant who habitually fails to perform the task assigned to him within the time set for the purpose and with the quality of performance expected of him shall be deemed to be lacking in devotion to duty within the meaning of Clause (ii) of Sub-rule (1).
Explanation II: Nothing in Clause (ii) of Sub-rule (2) shall be construed as empowering a Government servant to evade his responsibilities by seeking instructions from, or approval of, a superior officer or authority when such instructions are not necessary under the scheme of distribution of powers and responsibilities.
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70. The petitioner has also placed before this Court Section 10(d) of the CISF Act, 1969 which reads as follows:
10. Duties of member of the Force: It shall be the duty of every member of the Force -
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(d) to protect and safeguard the employees of the Industrial Undertakings and installations referred to in Clauses (b) and (c)
71. It is an admitted position that the security of the stadium and its property was under the protection of the CISF. The normal and natural consequences of the incident at the stadium could very well have endangered the safety and security of the stadium and its property which was admittedly within the security consideration of the CISF. The respondents do not suggest that the petitioner ought not to have gone to the stadium even to ascertain as to whether the security of the stadium was engaged or imperilled in any manner by the fracas and unruly situation prevalent there. Certainly, the actions of the petitioner fall squarely within the statutory duty imposed by Section 10(d) of the CISF Act, 1969 upon the petitioner.
72. The petitioner''s sense of integrity and devotion is manifested in his conduct. Despite the turmoil and agitation which the condition of injured Constables Majhi & Das would have incited at the CISF Headquarters amongst the other personnel, the petitioner displayed strong leadership qualities in not only keeping this situation under control but in simultaneously attempting to apprise and take instructions from his superiors. The petitioner''s every initiative and move was controlled, measured and sensible. The actions were certainly such which any reasonable or prudent person would undertake and clearly within the functions and duties enjoined on every Government servant under Rule 3 of the Central Civil Service (Conduct) Rules, 1964.
73. In this background, it cannot be held that the actions of the petitioner tantamounted to misconduct, let alone such misconduct as would invite suspension, disciplinary proceedings and the stringent penalty of dismissal from service which has been imposed upon him. As a result, it has to be held that the entire action and orders against the petitioner were misconceived, in violation of principles of natural justice and illegal.
74. We could have stopped after recording these findings. However, given a long period since 1985 (out of which twenty two years have been spent in this Court), we are compelled to deal with the alternate submissions made on behalf of the petitioner before us.
Whether the findings of the respondents against the petitioner are based on any relevant material?
75. It has been urged by Mr. Habibur Rahman and Ms. Shaista Siddiqui, Advocates, that even if it were to be held that the charges could have been framed against the petitioner, yet the petitioner is entitled to relief in the present petition as the respondents have failed to establish the same. It is urged that there is no evidence to support the finding of guilt on the first charge, as well.
76. It is noteworthy that the charge Nos. II & III have not been held proved. The respondents have themselves disbelieved the allegations that the petitioner was at all responsible for the melee at the stadium or for the events as they unfolded and occurred at the Pant Stadium. No culpability at all of the petitioner has been found.
77. The respondents have placed the record of the inquiry before us. We have examined the record in view of the primary ground of challenge by the petitioner to the effect that there was no evidence to support the finding of guilt of the petitioner. We find that sixteen witnesses were examined by the prosecution.
It has been pointed out that PW 1-Sh. N.K. Henry, Private Secretary, Sports & Recreation Group, BSP, Bhilai, M.P. has clearly stated that the petitioner was not the person who entered the stadium to create the fracas. PW 2-Sh. Bhagwan Das Beri, Chargeman, Foundry, Bhilai Steel Plant, Bhillai, M.P. also states that he did not see the petitioner in the violent incident. PW 3-Sh. Subhash Chibber, Assistant Sports Officer, Bhilai Steel Plant, Bhillai, M.P.; PW 4-Sh. Vyas, Teacher, Higher Secondary School, Bhilai Sector VII and PW 5-Sh. U.R. Kanna, Junior Roll Welder, Roll Turning Shop, BSP, Bhilai have also stated that they did not see the petitioner at the time of the incident. PW 3 also stated that along with other senior officers, he also saw petitioner in uniform actively controlling the crowd using his whistle. PW 6-Sh. Bashir Ahmed Khan, Junior Estate Inspector, Estate Department, BSP, Bhilai states that none from the crowd could be recognised. In his cross examination, he deposed that he did not see the petitioner. It has also come in his testimony that he was told to take the petitioner''s name. PW-7 Sh. Bhaskar Rudgra, Gas Operator, BSP Bhilai, M.P. stated that he could not identify the petitioner. PW 8- Sh. P.C. Devsikdar, Supervisor (Civil), BSP Bhilai, M.P. states that he did not see the petitioner. PW 9-Sh. Shirpurwar, Sector Officer, Personnel, PPC, BSP, Bhilai, M.P. stated that he did not see anything of the incident. In his cross-examination, this witness has clearly stated that the petitioner was seen at the spot only after the arrival of the DIG and not before. The statement of PW 10-Sh. Shenkotai, Additional Labour Officer, BSP Bhilai, M.P. is hearsay in nature for the reason that he was not present when the incident took place. PW 11-Sh. V.P. Singh, Sub- Inspector of Police, Bhatti Thana, Police Station, Bhilai M.P.; PW 12-Sh. H.C. Tripathy, Sub Inspector of Police, Bhatti Thana, Bhilai, M.P. are Sub Inspectors of the civil police and the only witnesses who have made the allegations against the petitioner. PW 13-D.C.M. Das, Constable, No. 8229103 of the CISF Unit, BSP, Bhilai posted to Nandini Mines was on duty with PW 14-Const. T.K. Majhi, Constable No. 8212160 of Nandini Mines in uniform and were injured in the police lathicharge. PW 13 has categorically stated that when he informed the petitioner of the happenings, he was advised by the petitioner not to return to the stadium. PW 15-Shri P.C. Biswal, Naik No. 7320526 of CISF Unit, Nandini Mines and PW 16-Shri D.K. Seal, Naik No. 7319418 of Rajhara Mines corroborate the petitioner''s deposition and explanation of the circumstances in which he had proceeded to the stadium.
78. It is noteworthy that PWs 1 to 10 were not connected with the CISF and are all independent persons. The only deposition against the petitioner is in the statement of PW 11-Sub Inspector V.P. Singh and PW 12-Sub Inspector H.C. Tripathy who were the police personnel involved in the lathicharge and incident and obviously interested in implicating the petitioner who was a CISF personnel. Their testimony is not supported by the independent public witnesses who were examined in the inquiry or any other person. On the other hand, the petitioner has laid positive evidence on this issue.
79. The inquiry officer has found that charge Nos. II & III could not be substantiated and disbelieved PW 11 & 12. The disciplinary authority, appellate authority as well as the revisoinary authority have accepted the findings of the inquiry officer so far as the charge Nos. II & III are concerned and have also completely disbelieved the narration of events by these witnesses so far as the subject matter of charge Nos. II & III are concerned. There is certainly no reason for accepting their testimony so far as these charges are concerned.
80. We find that the counter affidavit deals only with allegations which are a part of the second and third charge of which the petitioner stands absolved and the additional allegations of embarrassment to the force which was not a part of any charge.
81. The inquiry officer has held that only the first charge stood established against the petitioner. The appellate and revisionary authority accept this position however, disagree on the reasons therefore. The first charge as laid against the petitioner vaguely refers to "withdrawal of a group of enrolled members of the force". The respondents have not led any evidence with regard to the allocation of duties of the petitioner nor brought any material on record to establish a requirement of awaiting permission from superior officers despite such a charged situation and after having made every possible effort to inform them.
82. So far as the size of the group which accompanied the petitioner is concerned, it is to be noted that the charge in this behalf is also unclear and vague. A reference is made in the charge to a group of enrolled members of the force who were on fatigue duty and to the petitioner having rushed to the stadium without valid authority or permission from his superior officers or informing the control room.
83. The petitioner had appeared in the witness box and was cross examined by the respondents. The respondents do not even remotely suggest in the prosecution evidence or cross-examination of the petitioner that he had no authority or to go to the Pant Stadium. It is also admitted before us that there is no evidence at all as to what was the petitioner''s assigned duty. The source or basis of the allegation that the petitioner''s visit to the Pant Stadium was without valid authority has also not been placed before us.
84. Interestingly, the question No. 14 put by the inquiry officer to the petitioner was as to how he had come to know that the DIG was visiting the place. The petitioner has responded as follows:
Q. 14. How did you come to know that DIG is visiting the place?
Ans. On my return from stadium I went to Bn office and rang up DIG when SI Pathak attended the phone and informed me that DIG left for the Pant Stadium. I immediately went to the Central Avenue main road and waited for DIG. I saw him going towards Pant Stadium in a jeep. I followed his jeep by running upto Pant Stadium where DIG, Comdt. Cum AC Shri Rana, Rajeswar Singh and Inspt. C.L. Sharma were already there.
85. In this background, even if it were to be held that the allegations laid against the petitioner tantamounted to an act of misconduct, the respondents led no evidence to prove the same. The findings in the impugned orders with regard to charge I are based and no material at all.
Order dated 31st October, 1986 of the appellate authority; show cause notice dated 29th June, 1987 & order dated 13th October, 1987 of the revisionary authority - whether legally sustainable?
86. There is yet another aspect to his matter. The discussion by the Deputy Inspector General/Appellate Authority in the order dated 31st October, 1986 shows that the Appellate authority has arrived at several conclusions which were not arrived by the disciplinary authority. The appellate authority arrived at a conclusion that there was ample evidence to show that there was a clash between the police/SAF Jawans and CISF personnel and that this happened only after arrival of a group of CISF personnel wearing khaki shorts and white vests. It has been further recorded that the CISF barracks are located at a distance of a few hundred yards only and it would have been difficult for them to reach the stadium in a few minutes time, indulge in marpit and return to the barracks. While noticing the evidence of the prosecution witnesses, the appellate authority stops at noticing the reference to the incident, but the appellate authority completely ignores the material evidence of these very witnesses who unequivocally stated that the petitioner was not present when the clash took place. On the contrary, there is affirmative evidence from these witnesses to the effect that the petitioner reached the stadium after the arrival of Deputy Inspector General of police and was actively engaged in bringing the crowd under control. In fact, the witnesses have attributed only a positive role to the petitioner.
87. The appellate authority also notices the evidence of PW 11- Sub- Inspector V.P. Singh and PW 12 Sub-Inspector H.C. Tripathy, (both sub inspectors of the local police), to the effect that the petitioner led the group of people and ordered them to beat the police men is not supported by any other witness. The appellate authority has disbelieved this testimony of these two witnesses.
88. It is noteworthy that after the above discussion, the conclusions arrived at by the appellate authority for dismissing the appeal are firstly that "the petitioner could have informed his superiors and sought guidance/instructions for appropriate actions. The appellate authority further notes that "if he felt that the situation warranted that someone should go there, he should have gone there with a few personnel to assess the situation and informed his superiors".
89. The above narration of facts and the record shows that this was exactly what the petitioner had done. In this behalf, the evidence led by the respondents before the inquiry officer itself shows that the petitioner had made fervent attempts to contact the commandant as well as the administrative officer of the Company. Having failed in his efforts, upon learning of the fact that they were all in a meeting with the DIG, the petitioner then unsuccessfully tried to contact the DIG for the reason that the DIG''s telephone line was busy. The attempt made from another telephone was frustrated because the instrument was found to be out of order. In his defence, the petitioner has led evidence to prove even the fact that the telephone was out of order.
90. The depositions of the witnesses brings out the evidence of the turbulent and volatile situation created amongst the CISF personnel at the Headquarter lines upon learning of the lathicharge on their colleagues in the force, from those who had suffered in the same at the Stadium. It is also in evidence that visit to the stadium was only for the purposes of making an assessment of the situation. The petitioner''s effort was thus to defuse the tension which was brewing at the battalion headquarters. Perhaps, if the petitioner had not taken such initiative, the results may have been worse than what resulted at that time at the stadium.
The petitioner having acted in the manner suggested by the appellate authority, its findings and the punishment are clearly irrational and illogical.
91. The appellate authority has sought to place reliance on the testimony of the police personnel who have attempted to attribute the lead action in the clash to the petitioner which was not even been suggested by the other witnesses. These witnesses have been completely disbelieved by the inquiry officer and the disciplinary authority as the weight of evidence was to the contrary. In view of the incident taking the shape of a dispute between the police and the CISF, it is but natural that these police personnel would have nurtured malice and had a motive for implicating the petitioner who was a CISF personnel. Placing reliance on the testimony of the police personnel was not only unsafe but highly improper in the face of other independent evidence to the contrary.
92. The petitioner has been completely absolved of the second and third charges by the inquiry officer as well as the appellate authority. So far as the first charge is concerned, the same relates only to allegations to the effect that the petitioner had gone to the stadium without authorisation. There was no allegation that the petitioner had led a group of CISF personnel to the stadium who indulged in any illegal actions. In this background, the observations and findings of the appellate authority in its order dated 31st October, 1986 that the petitioner indulged in any such actions are based on no material at all and are baseless.
93. We also find that in the last para of the order dated 31st October, 1986 the appellate authority has made observations to the effect that the petitioner withdrew a very large group of CISF personnel without which the clash of the magnitude could not have taken place. The above conclusions arrived at by the appellate authority are contrary to the findings of the inquiry officer and tantamount to a disagreement with the findings of the inquiry officer. It needs no elaboration that upon such disagreement, the petitioner was required to be put to notice with regard to areas of disagreement and his responses were necessarily required to be considered before such contrary findings could be recorded.
94. In the inquiry report dated 2nd June, 1986, the inquiry officer has concluded that the petitioner proceeded to the Pant Stadium alongwith ''few persons'' to rescue the men on duty and has concluded from the evidence adduced by the prosecution and defence witnesses. It has also been found as clear and established that the petitioner returned to the unit line with the few persons within few minutes. There is no evidence at all that the petitioner returned to the Pant Stadium before the arrival of the DIG of the CISF or that he incited the clash with the police personnel. There is clear and cogent evidence to the contrary that the petitioner was engaged positively in bringing some semblance of order at the stadium after the DIG reached the place.
It is noteworthy that PW 13 Const. D.C.M. Das who was on duty with Const. T.K. Majhi at the Pant Stadium at the fateful time and had got beaten in the police lathicharge despite his being in CISF uniform has stated that when they informed the petitioner about the beating incident at the Stadium, SI Sur advised them not to go to the stadium. Sh. T.K. Majhi has appeared as PW 14 and corroborated the statement of PW 13.
95. The petitioner''s deposition with regard to the visit to the stadium and immediate return is corroborated by the evidence of PW 16 Naik D.K. Seal who had accompanied the petitioner beside Naik P.C. Biswal (PW 15) ; Naik Dhileshwar Sahoo; Head Const. Komal Singh and Naik Ram G. Singh. There is no evidence that the petitioner took anybody else with him or that he was in any manner instrumental in the violence which was taking place at the stadium.
96. In
14. Indisputably, a departmental proceeding is a quasi judicial proceeding. The Enquiry Officer performs a quasi judicial function. The charges leveled against the delinquent officer must be found to have been proved. The enquiry officer has a duty to arrive at a finding upon taking into consideration the materials brought on record by the parties. The purported evidence collected during investigation by the Investigating Officer against all the accused by itself could not be treated to be evidence in thedisciplinary proceeding. No witness was examined to prove the said documents. The management witnesses merely tendered the documents and did not prove the contents thereof. Reliance, inter alia, was placed by the Enquiry Officer on the FIR which could not have been treated as evidence.
15. We have noticed hereinbefore that the only basic evidence whereupon reliance has been placed by the Enquiry Officer was the purported confession made by the appellant before the police. According to the appellant, he was forced to sign on the said confession, as he was tortured in the police station. Appellant being an employee of the bank, the said confession should have been proved. Some evidence should have been brought on record to show that he had indulged in stealing the bank draft book. Admittedly, there was no direct evidence. Even there was no indirect evidence. The tenor of the report demonstrates that the Enquiry Officer had made up his mind to find him guilty as otherwise he would not have proceeded on the basis that the offence was committed in such a manner that no evidence was left.
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23. Furthermore, the order of the disciplinary authority as also the appellate authority are not supported by any reason. As the orders passed by them have severe civil consequences, appropriate reasons should have been assigned. If the enquiry officer had relied upon the confession made by the appellant, there was no reason as to why the order of discharge passed by the Criminal Court on the basis of self-same evidence should not have been taken into consideration. The materials brought on record pointing out the guilt are required to be proved. A decision must be arrived at on some evidence, which is legally admissible. The provisions of the Evidence Act may not be applicable in a departmental proceeding but the principles of natural justice are. As the report of the Enquiry Officer was based on merely ipse dixit as also surmises and conjectures, the same could not have been sustained. The inferences drawn by the Enquiry Officer apparently were not supported by any evidence. Suspicion, as is well known, however high may be, can under no circumstances be held to be a substitute for legal proof.
97. Further, while exercising their power of judicial review the courts must look into the aspect that inference on facts is based on evidence which meet the requirement of legal principles in such proceedings and can interfere not only when charges are based on no evidence at all, but also when it appears that evidence, even when taken on its face value to be correct in its entirety, meets the requirements of burden of proof in such proceedings, namely, preponderance of probability. (Ref:
98. On the same issue, in
26. In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angles. Despite limited jurisdiction a civil court, it was entitled to interfere in a case where the report of the Enquiry Officer is based on no evidence. In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it should keep in mind the following: (1) the enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry. [See
xxx xxx xxx
44. No such finding has been arrived at even in the disciplinary proceedings nor any charge was made out as against the appellant in that behalf. He had no occasion to have his say thereupon. Indisputably, the writ court will bear in mind the distinction between some evidence or no evidence but the question which was required to be posed and necessary should have been as to whether some evidence adduced would lead to the conclusion as regard the guilt of the delinquent officer or not. The evidence adduced on behalf of the management must have nexus with the charges. The Enquiry Officer cannot base his findings on mere hypothesis. Mere ipso dixit on his part cannot be a substitute of evidence.
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45. The findings of the learned Single Judge to the effect that ''it is established with the conscience (sic) of the Court reasonably formulated by an Enquiry Officer then in the eventuality'' may not be fully correct inasmuch as the Court while exercising its power of judicial review should also apply its mind as to whether sufficient material had been brought on record to sustain the findings. The conscience of a court may not have much role to play. It is unfortunate that the learned Single Judge did not at all deliberate on the contentions raised by the appellant. Discussion on the materials available on record for the purpose of applying the legal principles was imperative. The Division Bench of the High Court also committed the same error.
99. In
25. Although the charges in a departmental proceedings are not required to be proved like a criminal trial, i.e., beyond all reasonable doubts, we cannot lose sight of the fact that the Enquiry Officer performs a quasi-judicial function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.
100. So far as the notice to show cause dated 29th June, 1987 is concerned, the revisionary authority found that "the petitioner had rushed to the Pant Stadium without any valid authority or permission from his superior officers or informing the control room". He has further observed that the petitioner had "put the force in an embarrassing situation". It is noteworthy that there is no evidence at all on record as to what were the parameters of the petitioner''s authority or basis for the contention that the petitioner was required to take permission from superior officers with regard to the incident. We have held that the actions were within the boundaries of the duties enjoined upon him and that his conduct was that which has been suggested by the appellate authority.
101. In the second charge, the respondents had alleged that the conduct of the petitioner created a nuisance and an ugly scene and brought bad name of the force. The respondents could not establish this charge against the petitioner. The petitioner has however been found guilty by the respondent No. 2 of having put the force in an embarrassing position. No such allegation against the petitioner forms part of the first charge. There is certainly no evidence on record in support of this allegation. The findings returned against the petitioner to this effect defy logic and are perverse. Such findings are clearly in the teeth of the law laid down in the several judicial precedents noticed hereinabove and legally not sustainable.
102. It is noteworthy that the appellate and the revisionary authorities have not faulted the petitioner for the act of merely going to the Pant Stadium. Instead they have attributed fault for the clash which has occurred. This was the subject matter of charge Nos. II & III which the authorities have found as having been not proven against the petitioner. For this reason as well, the order dated 31st October, 1986 of the appellate authority; show cause notice dated 29th June, 1987 and the order dated 13th October, 1987 of the revisionary authority are in violation of principles of natural justice and legally not tenable.
In view of the above, it is not necessary to deal with the petitioner''s contention that the show cause notice was illegal on the grounds of violation of Rule 49 of the CISF Rules, 1969 and the requirement of compliance with Rule 47 in case of enhancing the punishment.
Proportionality of the punishment
103. Mr. Habibur Rahman & Ms. Shaista Siddiqui, learned Counsels for the petitioner have placed the alternative submission before us that even if the petitioner''s actions could be faulted, the punishment imposed upon the petitioner by the disciplinary authority as well as the enhanced punishment imposed by the respondent No. 2 are grossly disproportionate to the charges levelled against him. In this regard, reliance is placed on the judgments of this Court dated 31st August, 2007 in WP (C) No. 5226/2005 entitled Satender Pal Singh v. UOI and Ors.; the decision dated 31st May, 2007 in WP (C) No. 734/2006 entitled Mahesh Chand v. UOI and Ors. and the decision dated 7th July, 2006 in WP (C) No. 13221/1999 entitled M. Gopalakrishna v. Divisional Security Commissioner, Railway Protection Force, S.C. Railway and Ors. Reliance is also placed on a decision dated 17th November, 2008 in WP (C) No. 2511/1989 entitled Surat Singh v. UOI and Anr. and a decision of the Calcutta High Court dated 23rd December, 2008 in FMA No. 1063/2007; CAN No. 6953/2006 entitled G.D. Paul v. UOI and Ors.
104. On the other hand, learned Counsel for the respondents has vehemently urged that the punishment imposed upon the petitioner by the respondent No. 2 was more than justified keeping in view the imperative necessity to maintain discipline in the force as its personnel who are entrusted with sensitive tasks and that the petitioner being the superior officer, took a large group of CISF personnel to Pant Stadium which was completely outside the jurisdiction of the CISF and his actions were beyond the duties assigned to him. Mr. Manikya Khanna, learned Counsel for the respondents contends that therefore the punishment imposed by the respondent No. 2 was justified and not disproportionate to the gravity of the petitioner''s misconduct. Learned Counsel has placed reliance on the pronouncement of the Supreme Court reported at
105. So far as the scope and manner of judicial review of disciplinary action raising an issue of proportionality of a sentence imposed upon a person is concerned, the principles are well settled. The judgment of the Supreme Court in
18. ...The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High Court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to reconsider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in support thereof.
106. In
31. In such a situation, unless the Court/ Tribunal opines in its secondary role, that the administrator was, on the material before him, irrational according to Wednesbury or CCSU norms, the punishment cannot be quashed. Even then, the matter has to be remitted back to the appropriate authority for reconsideration. It is only in very rare cases as pointed out in B.C. Chaturvedi''s case AIR 1995 SCW 4374 that the Court might, - to shorten litigation - think of substituting its own view as to the quantum of punishment in the place of the punishment awarded by the competent authority. (In B. C. Chaturvedi and other cases referred to therein it has however been made clear that the power of this Court under Article 136 is different). For the reasons given above, the case cited for the respondent, namely.
32. For the aforesaid reasons, we set aside the order of the Tribunal which has interfered with the quantum of punishment and which has also substituted its own view of the punishment. The punishment awarded by the departmental authorities is restored. In the circumstances, there will be no order as to costs.
107. These decisions were examined and the principles reiterated by the court in the judgment reported at
14. The common thread running through in all these decisions is that the Court should not interfere with the administrator''s decision unless it was illogical or suffers from procedural impropriety or was shocking to the conscience of the Court, in the sense that it was in defiance of logic or moral standards. In view of what has been stated in the Wednesbury''s case (supra) the Court would not go into the correctness of the choice made by the administrator open to him and the Court should not substitute its decision to that of the administrator. The scope of judicial review is limited to the deficiency in decision-making process and not the decision.
15. To put differently, unless the punishment imposed by the Disciplinary Authority or the Appellate Authority shocks the conscience of the Court/Tribunal, there is no scope for interference. Further to shorten litigations it may, in exceptional and rare cases, impose appropriate punishment by recording cogent reasons in support thereof. In a normal course if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the Disciplinary Authority or the Appellate Authority to reconsider the penalty imposed.
108. In
25. Judicial review generally speaking, is not directed against a decision, but is directed against the "decision making process". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-Martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect which is, otherwise, within the exclusive province of the Court-Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. Irrationality and perversity are recognised grounds of judicial review. In Council of Civil Service Unions v. Minister For The Civil Service (1984) 3 W L R 1174 Lord Diplock said:
...Judicial Review has, I think, developed to a stage today when without re-iterating any analysis of the steps by which the development has come about, one can conveniently classify under three heads the grounds upon which administrative action is subject to control by judicial review. The first ground I would call ''illegality'', the second ''irrationality'' and the third ''procedural impropriety''. That is not to say that further development on a case by case basis may not in course of time add further grounds. I have in mind particularly the possible adoption in the future of the principle of ''proportionality'' which is recognised in the administrative law of several of our fellow members of the European Economic Community...
109. In
110. The Supreme Court has in a host of cases while dealing with the question of quantum of punishment, held that courts would apply the Wednesbury principles of reasonableness while considering the question of quantum of punishment. It has been held that if punishment is in violation of these principles, the matter would normally require to be remitted to the administrator for a fresh decision on the same. It is only in rare cases where there has been a long delay because of the time taken in completing the same, would it be permissible to a court to substitute its own view with regard to the quantum of punishment. (Ref:
111. The above narration would show that the objection of the learned Counsel for the respondents to maintainability of the examination sought by the petitioner of the sentence imposed upon him as being beyond the scope of judicial review under Article 226 of the Constitution of India, is also misconceived. A challenge to a sentence or punishment invoking the doctrine of proportionality is a well settled part of judicial review of administrative action.
112. In the instant case, the petitioner has faced a disciplinary inquiry in view of his concern about a serious incident which was brought to his notice when he was in a position of authority and was discharging supervisory functions on the date of incident.
113. The turbulent and tense situation at the lines and the emotion generated amongst the CISF personnel compelled the petitioner to go to the stadium to take stock of the situation, return to the battalion headquarters without any delay and again make concerted unsuccessful efforts to reach his superior officers. The petitioner thereafter followed the DIG to the stadium and actively engaged in bringing the situation under control. The respondents have disbelieved the allegation that the petitioner was party to the clash in any manner. No superiors were available in their battalion. Interestingly, all the parties record the blemishless services rendered by the petitioner and acknowledge the fact that he had been highly decorated and rewarded.
114. The issue which has to be examined is as to whether in these established facts, the conduct of the petitioner merited imposition of punishment of even reduction of pay by two stages i.e. Rs. 428/- to Rs. 404/- w.e.f. 1st July, 1986 for a period of two years which could have an effect of postponement of future increment as was imposed by the disciplinary authority or the punishment of dismissal from service imposed by the revisionary authority.
115. In the case WP (C) No. 13221/1999 entitled M. Gopalakrishna v. Divisional Security Commissioner, Railway Protection Force, S.C. Railway and Ors., decided on 7th July, 2006, the High Court of Andhra Pradesh had occasion to consider a sentence of dismissal from service upon the petitioner who was an employee of the Railway Protection Force (RPF). It had been alleged that the petitioner left the headquarters without obtaining the permission from the Sub Inspector, RPF. The petitioner had contended that he left because he came to know that his wife was behaving abnormally. On the charge of leaving headquarters and unauthorised absence, the severe punishment of removal from service was imposed upon the petitioner after a disciplinary inquiry. The court placed reliance on several pronouncements relating to administrative action based on the charge of absence without leave and held that while considering such matters, the court must examine whether the competent authority had left out relevant factors or had taken into account irrelevant factors. It was observed that the authorities had failed to take into notice the fact that the petitioner''s wife had committed suicide and he stood arrested by the police despite information in this behalf having been received. Even though the fact of death of his wife and about child was brought to the notice of the revisionary authority, it held that his very involvement in the criminal case had brought disrepute to the Railway Protection Force. The court also observed that under the applicable rule, punishment of removal from service could be imposed only for absence from duty without sufficient cause. In these facts, it was held by the High Court that the punishment of removal from service was grossly disproportionate, irrational, in defiance of logic and moral standard and that the punishment shocked the conscience of the court. The order of punishment from removal from service was therefore set aside.
116. In the instant case, we have found that the conduct of the petitioner at its worst is an error of judgment and misplaced zeal which could not have invited disciplinary proceedings against the petitioner. Even if the disciplinary action was validly initiated against the petitioner, no evidence at all to support the first charge was laid by the respondents. The petitioner being the Company Commander, was in a position of authority and was required to take initiative. Shockingly he has been penalised for reacting to protect the CISF personnel and property which was the security concern of the CISF. The petitioner has thus been punished for dutifully discharging his bounden duty. Therefore, it has to be held that the punishment imposed on the petitioner was irrational and in total defiance of logic or moral standards. In view of the above discussion, the punishment imposed by the disciplinary authority and the revisionary authority are unquestionably shocking to judicial conscience and grossly disproportionate to the allegations made against the petitioner.
Conclusions:
117. In view of the above discussion, it is held that actions attributed to the petitioner do not fall within the scope and definition of the expression "misconduct". For this reason, the memorandum dated 19th October, 1985 issued by the Commandant of the Central Industrial Security Force is contrary to law. The order dated 28th June, 1986 of the disciplinary authority finding the petitioner guilty of the first charge; the order dated 31st October, 1986 passed by the Deputy Director General-respondent No. 2 herein rejecting the appeal of the petitioner; the show cause notice dated 29th June, 1987 and the order dated 13th October, 1987 passed by the revisionary authority are based on no evidence at all, are in violation of the principles of natural justice and contrary to well settled principles of law. The punishment imposed upon the petitioner by the disciplinary authority of the order dated 28th June, 1986 and its enhancement by the order dated 13th October, 1987 of the revisionary authority are shockingly disproportionate to the gravity of the allegations laid against the petitioner and are both unwarranted.
118. The question which finally arises is that in view of the findings against the petitioner and the orders of punishment including his dismissal being held illegal, what would be the consequential reliefs which would flow therefrom. The petitioner would obviously required to be reinstated into service with continuity of service for all purposes and notional promotions. The respondents would also be required to pass the necessary orders regularising the petitioner''s absence from duty which has resulted in the above circumstances.
119. There is one more aspect of the matter which is the issue of b ac kwa ges. The entitlement of a workman to get reinstated on account of setting aside of an order of termination of service, does not necessarily result in payment of back wages. The Supreme Court has held that this question would be independent of the order of reinstatement and therefore requires to be considered. (Ref
120. So far as the issue of payment of back wages is concerned, no rigid or mechanical or strait-jacket formula can be followed and the same depends on the facts and circumstances of each case. It cannot be laid down as to whether payment of full back wages should be allowed or not. The power of the court is discretionary which has to be exercised by a court or tribunal keeping in view the facts in their entirety and all relevant circumstances independent of the order of reinstatement into service.
121. We had occasion to consider and cull out some factors which have to be evaluated by the courts in grant of appropriate back wages in a decision rendered on 31st May, 2010 in WP (C) No. 236/2000 entitled Ex. L/NK Vimal Kumar Singh v. Union of India and Ors. which reads as follows:
(i) the nature of employment and regular service of permanent character would not be comparable to a short or intermittent daily wage employment though it may be for 240 days in a calender year (Ref
(ii) If the workman has rendered considerable period of service before his services are wrongly terminated, he may be awarded full or partial back wages keeping in view the fact that at his age and qualification possessed by him, he may not be in a position to get another employment. However, where the total length of service rendered by workman is small, the award of back wages for the complete period i.e. from the date of termination till the date of award which is often large, would be wholly inappropriate.
(iii) The court also observed that other factors like the manner and method of selection and appointment, i.e. whether it was after proper advertisement of the vacancy or inviting applications from the employment exchange; nature of appointment as to whether ad hoc, short-term, daily wage, temporary or permanent in character; any special qualification required for the job would be weighed in taking a decision regarding the award of back wages. (Ref.:
(iv) On the same issue, in UPSRTC Ltd. v. Sarada Prasad Misra (supra), the Supreme Court held that the record of the employer reflected that the services of the respondent-workman had never been found satisfactory. On an earlier occasion, his services were terminated but he was taken back giving a chance to improve. Unfortunately, the workman did not utilise the same. The workman stood warned on several occasions prior to the three incidents in question. In this view of the matter, the Supreme Court held that grant of back wages to this workman was not correct and the order of the courts below was interferred with. Therefore the record of the employee would be a relevant factor while considering award of back wages.
(v) A very important consideration on the issue relating to grant of back wages is the fact that the employer is being compelled to pay the workman for a period during which he contributed nothing at all, for a period that was spent unproductively while the workman is being compelled to go back to a situation which prevailed many years ago when he was dismissed. On this aspect, the approach which is required to be taken has been succinctly put by the Supreme Court in the judgment reported at
122. From the above discussion, so far as factors which could govern consideration of the prayer for entitlement of back wages, the factual scenario and the principle of justice, equity and good conscience would guide the consideration.
123. We find that the impugned order dated 13th October, 1987 notices that the petitioner had informed the respondents that he belongs to a very poor family and has to look after a large family consisting of his parents, two younger brothers, wife and a son of tender ages. It has been stated before us that the petitioner has not been employed since the time he was dismissed.
124. The record shows that the petitioner had filed CM No. 1132/1990 on 28th February, 1990 objecting to the delay in hearing of the writ petition on account of the respondents taking repeated adjournments for filing the counter affidavit. In para 4 of this application, the petitioner had stated that he was out of employment since the passing of the impugned order; that he was a married man who was on the verge of starvation with his wife and children and that delay in the adjudication was only to crush him to death.
No material to the contrary has been placed on record to support that the petitioner was employed in any manner.
125. These very pleas have been reiterated in CM No. 5126/1995 filed on 14th August, 1995 again praying for early hearing. It has been averred that the petitioner was out of employment since he was dismissed pursuant to the order dated 13th October, 1987. A third application for early hearing of the writ petition being CM No. 7093/2001 was filed on 11th December, 2001 by the petitioner again stating that he was out of employment since 13th October, 1987.
126. The record would show that the petitioner is a resident of District 24 Paraganas, West Bengal who is represented by counsel in this Court. On account of default of appearance by counsel, the writ petition came to be dismissed on 14th July, 2006. Even in the restoration application by the petitioner being CM No. 11166/2009 the petitioner had stated that he has been starving for not having any source of income due to the dismissal from service from 13th October, 1987. No material to the contrary has been placed on record by the respondents. We see no reason to disbelieve the petitioner that he was unemployed and had no source of income.
127. The petitioner was recruited as an Assistant Sub-Inspector in the CISF on the 6th October, 1975. Further, he was promoted to the rank of Sub-Inspector on 26th August, 1984 in consideration of his service and meritorious service. He was suspended vide order dated 1st October, 1985. Therefore, until the incident, he had served for approximately ten years in the force and received 20-26 rewards for meritorious performance of duty. He had a very clean record of service and the same was also mentioned by the commandant in his order dated 29th June, 1986. The Commandant has also noted that the chargesheet in question was the first ever memo issued to the petitioner.
128. The petitioner has been kept out of employment on totally unjustified and unfair premises. It would be of grave national concern and opposed to public interest if, placed as the petitioner was, officers and persons in authority in para military forces engaged in security duties did not take initiative or did not react to the situation. Of course such actions have to be tempered by due care and caution, as was displayed by the petitioner as well as strict compliance with the applicable statutes, rules and regulations having regard to the discipline which is required to be maintained in the security forces. No violation of any rules or regulations by the petitioner has been pointed out and no misconduct made out. The action taken against the petitioner would discourage others in similar circumstance to react which may result in disastrous consequences. In these facts, having regard to the grave injustice meted out to the petitioner, it has to be held that he would be entitled to full back wages.
Result:
129. In view of the above discussion, it is ordered as follows:
(i) The order dated 19th October, 1985 of the Commandant; order dated 28th June, 1986 of the disciplinary authority; order dated 31st October, 1986 of the appellate authority; show cause notice dated 29th of June, 1987 and the order dated 13th of October, 1987 passed by the revisionary authority are in violation of principles of natural justice, contrary to law and hereby set aside and quashed.
(ii) The petitioner shall stand reinstated with continuity of service, seniority and notional promotion(s) with effect from the date on which his juniors were promoted.
(iii) The orders in terms of these directions shall be passed by the respondents within six weeks of this pronouncement and communicated to the petitioner.
(iv) The petitioner shall be entitled to backwages with effect from the date from which he was suspended till restoration of his service. The respondents shall be entitled to adjustment of amounts which may have been paid as suspension allowance or any other count to the petitioner. The computation in this behalf shall also be intimated to the petitioner within six weeks and amounts released to the petitioner within four weeks thereafter.
(v) The petitioner shall be entitled to costs which are quantified at Rs. 25,000/-.
This writ petition is allowed in the above terms.
