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Judgment
Namit Kumar, J.
The petitioners have approached this Court under Articles 226/227 of the Constitution of India, seeking issuance of a writ in the nature of certiorari for quashing the enquiry report dated 26.09.2014 (Annexure P-10), whereby the charges levelled against them were held to be proved and a recommendation for their dismissal from service was made as well as the consequential order dated 01.12.2014 (Annexure P-11), whereby the petitioners were dismissed from service.
Briefly stated, the facts of the case are that petitioner No.1– Avtar Singh was initially appointed as a temporary Sewadar on daily-wage basis on 20.12.2002 (Annexure P-1) and was subsequently appointed on regular basis vide appointment letter dated 14.05.2009 (Annexure P-2), whereas petitioner No.2–Baldev Singh was appointed as a Clerk vide appointment letter dated 08.12.1989 (Annexure P-3) by the Shiromani Gurdwara Parbandhak Committee (hereinafter referred to as ‘SGPC’). Both the petitioners were placed under suspension on 29.11.2013 and thereafter served with charge-sheets dated 22.05.2014 (Annexures P-4 & P-5). The allegation against them was that on 29.11.2013, while they were on duty in a vehicle, they were intercepted by the Flying Squad comprising Gurpreet Singh and Gurwinder Singh and, upon checking, a packet allegedly containing intoxicant powder (Bhuki) was recovered from beneath the driver’s seat. It was further alleged that both the petitioners made separate confessional statements (Annexures R-1 and R-2). In reply to the charge-sheets, both the petitioners in their respective replies (Annexures P-6 and P-7) denied the allegations and specifically stated that they were not carrying any intoxicant and that the alleged confessional statements had been obtained from them under fear and threat and that they had been forced to sign the same. Thereafter, a Sub-Committee was constituted on 19.09.2014 to conduct the enquiry, wherein three witnesses, namely, Gurpreet Singh, member of the Flying Squad; Bhai Satnam Singh, Record Keeper, who arrived after the alleged incident; & Kulwinder Singh, Accountant, were examined. The Sub-Committee, vide its enquiry report dated 26.09.2014 (Annexure P-10), held the charges against both the petitioners to be proved and recommended their dismissal from service. The relevant portion of the enquiry report dated 26.09.2014 (Annexure PP-10) reads thus:
“From the above inquiry,, this matter has come to forefront that Avtar Singh and Baldev Singh during preliminary inquiry have admitted that they consume Bhuki and the packet which was recovered from them from the vehicle of Gurdwara Sahib contained Bhuki. Avtar Singh and Baldev Singh from their behaviour have not only brought bad name to the management of Gurdwara but have also violated the rules of Shiromani Gurdwara Parbandhak Committee. It is further proved from this that the charges levelled against Avtar Singh and Baldev Singh in the charge sheet are correct. Therefore this Sub Committee feels that Avtar Singh and Baldev Singh should be dismissed from service...”
On the basis of the aforesaid enquiry report and the alleged confessional statements, the petitioners were dismissed from service vide order dated 01.12.2014 (Annexure P-11). It is these orders, which have been impugned in the present petition.
Written statement on behalf of the respondent-SGPC has been filed, wherein it has been pleaded that once the petitioners had admitted their guilt and had committed the heinous crime and brought bad name to the religious body, they have rightly been charge-sheeted and dismissed from service after holding a proper departmental enquiry. Reliance has been placed on the decision in the case of CWP-3067-1999 titled as ‘Lakhbir Singh v. SGPC’ decided on 13.09.2000.
The petitioners filed replication controverting the averments made in the written statement.
It is pertinent to notice here that during the pendency of the present writ petition, petitioner No.2, namely, Baldev Singh had expired and his LRs were impleaded vide order dated 28.08.2023.
Learned counsel for the petitioners has submitted that the petitioners have been dismissed from service merely on the basis of alleged confessional statements dated 29.11.2013 (Annexures R-1 & R-2) despite the fact that the said statements were denied by them in their replies to the charge-sheet/s and having specifically stated that the same were obtained under duress, fear and threat. Learned counsel, thus, submitted that the findings of guilt and consequential dismissal order are liable to be set aside, as the same are based upon a disputed and retracted pre-charge-sheet confession. ItIt has further been submitted that the departmental witnesses does not establish either the alleged recovery or the possession of any intoxicating substance by the petitioners. He further submitted that Gurwinder Singh, who allegedly effected the recovery of intoxicant substance, was not examined during the enquiry proceedings and the alleged recovered Bhuki was also not produced before the Sub Committee and there is no chemical examination/FSL report establishing that the packet actually contained an intoxicant substance. He further submitted that once the recovery of intoxicant itself has not been proved during enquiry, the petitioners cannot be held liable only upon the alleged ‘admissions’ made by them. He thus, submitted that the enquiry did not independently establish the basic ingredients of the charge. In support of his contentions, learned counsel placed reliance upon a decision of Hon’ble Supreme Court in Roop Singh Negi v. Punjab National Bank & others, (2009) 2 SCC 570 and a Division Bench judgment of this Court in CWP-1780-2000 titled ‘Sukhdev Singh Vs. SGPC’ decided on 18.12.2000.
Learned counsel for the petitioner has also submitted that the Sub-Committee travelled beyond the scope of its jurisdiction by recommending the extreme penalty of dismissal from service, instead of confining itself to recording its findings on the charges levelled against the petitioners. In support of his submission, learned counsel has placed reliance upon the judgment of the Hon’ble Supreme Court in State of Uttaranchal & others v. Kharak Singh, (2008) 8 SCC 236.
Per contra, learned counsel representing the respondent-SGPC submitted that the charge has duly been proved during enquiry and, therefore, the petitioners were rightly dismissed from service. He further submitted that once the petitioners had admitted their guilt in their statements dated 29.11.2013 recorded by the members of the Flying Squad, therefore, the charge leveled against the petitioners was rightly established and they have rightly been dismissed from service.
I have heard learned counsel for the parties and have also perused the record with their able assistance.
The facts are not in dispute that petitioner No.1 and petitioner No.2 were working as Helper and Clerk respectively with the SGPC and were placed under suspension on 29.11.2013. Charge-sheets dated 22.05.2014 were thereafter served upon them, alleging that on 29.11.2013, while on duty in their vehicle, they were stopped by the Flying Squad comprising Gurpreet Singh and Gurwinder Singh, whereupon a packet containing intoxicant powder (Bhuki) was allegedly recovered from beneath the driver’s seat. Both petitioners are stated to have made separate confessional statements (Annexures R-1 and R-2). The petitioners, in their respective replies (Annexures P-6 and P-7) to the charge-sheet/s, denied the charges and asserted that they were not carrying any intoxicant and that the alleged confessional statements had been obtained from them under fear, threat and coercion. A Sub-Committee was thereafter constituted on 19.09.2014 to conduct the enquiry. Three witnesses, namely, Gurpreet Singh, member of the Flying Squad; Bhai Satnam Singh, Record Keeper, who arrived after the alleged incident; and Kulwinder Singh, Accountant, were examined. The Sub-Committee, vide enquiry report dated 26.09.2014 (Annexure P-10), held the charges against both the petitioners to be proved and recommended their dismissal from service.
The question which arises for consideration is; whether the alleged confessional statements dated 29.11.2013 recorded by the members of the Flying Squad, coupled with the evidence led before the Sub-Committee, constitute sufficient material to sustain the findings of guilt and the consequential imposition of the extreme penalty of dismissal from service?
There is no dispute to the fact that the aforesaid confessional statements were specifically denied by the petitioners in their replies to the charge-sheets. The petitioners categorically stated that the alleged confessional statement/s had been obtained under fear, threat and coercion and that they had been compelled to sign the same. Once the alleged confessionalal statements were specifically disputed, the same could not, by themselves, constitute the sole basis for recording a finding of guilt, particularly when the charge was required to be independently established by admissible and reliable evidence.
In the present case, the alleged recovery of ‘Bhuki’ has not been established during the enquiry by any cogent or reliable evidence. The person who allegedly effected the recovery, namely, Gurwinder Singh, was not examined during the enquiry. Further, the alleged recovered substance was neither produced before the Sub-Committee nor was any chemical examination or FSL report placed on record to establish that the packet allegedly recovered from the vehicle contained any intoxicating substance. The other witnesses examined during the enquiry also failed to establish the actual recovery of the alleged substance from the possession of the petitioners. Thus, the very foundation of the charge remained unsubstantiated and the finding of guilt rests substantially upon the alleged ‘admissions’ made by the petitioners.
The Hon’ble Supreme Court of India in Roop Singh Negi’s case (supra) has categorically held that any confession made prior to the departmental proceedings cannot, by itself, lead to an inference of guilt unless the charge is otherwise established on the basis of evidence led during the enquiry. In the said case also, the finding of guilt based upon a confession made before the police was found unsustainable and the employee was ordered to be reinstated with full back wages. It has been held as under:
“10.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 the disciplinary 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. 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. xx xx xx
15.Yet again in M.V. Bijlani v. Union of India & others, (2006) 5 SCC 88, this Court held:
"....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."
16.Yet again in Jasbir Singh v. Punjab & Sind Bank & others [(2007) 1 SCC 566], this court followed Narinder Mohan Arya v. United India Insurance Co. Ltd. & others (supra), stating:
"12.In a case of this nature, therefore, the High Court should have applied its mind to the fact of the matter with reference to the materials brought on records. It failed so to do."
17.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.”
Similarly, in Sukhdev Singh’s case (supra), a Division Bench of this Court has set aside the order of dismissal passed against the petitioner therein, which was based upon investigation report submitted by the Flying Squad of SGPC by holding that ipso facto the dismissal cannot be based upon the said investigation report and though the same can be made base for issuance of charge-sheet. In the said judgment, reliance was also placed upon the judgments in Mewa Singh & others v. Shiromani Gurdwara Parbandhak Committee, 1998 (8) JT 503;; (1999) 1 SCT 282 and CWP-4636-1999 titled ‘Inderjit Singh v. SGPC’ decided on 17.07.2000.
There is yet another infirmity in the enquiry report. The Sub-Committee, after recording its finding that the charges stood proved, proceeded to recommend that the petitioners be dismissed from service. The power to impose punishment, vests in the disciplinary/punishing authority and not in the Enquiry Officer or Sub-Committee. The Hon’ble Supreme Court in Kharak Singh’s case (supra),has held that the Enquiry Officer has no role in awarding punishment and that the question of imposition of an appropriate penalty is within the exclusive jurisdiction of the disciplinary authority. The Enquiry Officer is required to record findings on the charges and cannot usurp the jurisdiction of the disciplinary authority by recommending or directing a particular punishment. It has been held as under:
“10.In regard to the question whether an enquiry officer can indicate the proposed punishment in his report, this Court, in a series of decisions has pointed out that it is for the punishing/disciplinary authority to impose appropriate punishment and enquiry officer has no role in awarding punishment. It is useful to refer to the decision of this Court in A.N.D’Silva v. Union of India, (1962) Supp 1 SCR 968, wherein it was held:
"In the communication addressed by the Enquiry Officer the punishment proposed to be imposed upon the appellant if he was found guilty of the charges could not properly be set out. The question of imposing punishment can only arise after enquiry is made and the report of the Enquiry Officer is received. It is for the punishing authority to propose the punishment and not for the enquiring authority." xx xx xx
13.Another infirmity in the report of the enquiry officer is that he concluded the enquiry holding that all the charges have been proved and he recommended for dismissal of the delinquent from service. The last paragraph of his report dated 16.11.1985 reads as under:-
"During the course of above inquiry, such facts have come into light from which it is proved that the employee who has doubtful character and does not obey the order, does not have the right to continue in the government service and it is recommended to dismiss him from the service with immediate effect."
Though there is no specific bar in offering views by the enquiry officer, in the case on hand, the enquiry officer exceeded his limit by saying that the officer has no right to continue in the government service and he has to be dismissed from service with immediate effect. As pointed out above, awarding appropriate punishment is the exclusive jurisdiction of the punishing/disciplinary authority and it depends upon the nature and gravity of the proved charge/charges and other attended circumstances. It is clear from the materials, the officer, who inspected and noted the shortfall of trees, himself conducted the enquiry, arrived at a conclusion holding the charges proved and also strongly recommended severe punishment of dismissal from service. The entire action and the course adopted by the enquiry officer cannot be accepted and is contrary to the well-known principles enunciated by this Court.”
So far as the reliance placed by the learned counsel representing the respondent-SGPC on the judgment rendered in Lakhbir Singh’s case (supra) is concerned, the same is not applicable in the present case. In the said case, the employee had admitted the charge in his reply to the charge-sheet itself, whereas in the present case, the petitioners denied the alleged confessional statements and specifically stated that the same had been obtained under fear and coercion. Moreover, as noticed above, the alleged recovery was not independently established during the enquiry.
In view of the aforesaid discussion, this Court is of the considered view that the finding of guilt recorded against the petitioners is not sustainable, as the alleged recovery of intoxicant was not independently proved during the enquiry and the disputed pre-charge-sheet confessional statements could not constitute a sufficient basis for recording a finding of guilt and the enquiry officer exceeded his jurisdiction by making recommendations on the punishment, an act which is per se beyond the domain of the enquiry proceedings.
Consequently, the present petition is allowed. The enquiry report dated 26.09.2014 (Annexure P-10) and the consequential order of dismissal dated 01.12.2014 (Annexure P--11) are hereby quashed. The respondent-SGPC is directed to reinstate petitioner No.1 and extend consequential benefits to the legal representatives of petitioner No.2, who expired during the pendency of the petition. The arrears of pay and allowances, along with all consequential service benefits, shall be calculated and released to the petitioner/legal representatives, within a period of three months from the date of receipt of a certified copy of this order.