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Judgment
Per Hon'ble Mr. Pankaj Kumar, Member-Administrative
In this case relating to punishment, the applicant has sought following reliefs:
"(a)Issue order/direction in the nature of certiorari quashing the order dated 03.04.2017, contained in Annexure no. 1, passed by the respondent, communicated by Chief Administrative & Accounts Officer, Atomic Minerals Directorate for Exploration & Research, Hyderabad vide letter dated 11.04.2017 whereby the applicant has been dismissed form service with immediate effect under Rule 15(4) of CCS (CCA) Rules, 1965 and order dated 22.12.2009, contained in Annexure No. 2 passed by Administrative Officer-III, Atomic Minerals Directorate for Exploration & Research Hyderabad whereby full pay and allowances for the suspension period from 07.11.2005 to 15.07.2009 has been restricted to subsistence allowance and also to quash the order dated 05.10.2016, contained in Annexure No. 3 in so far as it relates the period of his date of dismissal to the date of reinstatement has been held as 'Dies-non' with all service benefits.
(b)Issue order/direction in the nature of mandamus commanding the respondent not to give effect the order dated 03.04.2017 passed by respondent, contained in Annexure No. 1 with a further prayer to reinstate the applicant in service, with a further prayer to direct the respondent to pay full pay and allowances for the period 07.11.2005 to 15.07.2009 as per provisions contained in Rule 54 (a) of FRSR and also to pay salary from the date of reinstatement i.e. 23.10.2016 till the date of order of dismissal to dated 03.04.2017 and also to pay the subsistence allowance as per recommendations of VI CPC from the date from 07.11.2005 to 15.07.2009 with all consequential benefits.
(c)Issue such other order/direction which may be deemed just and proper in the circumstances of the case.
(d)Allow the Original Application with cost against the respondents in the facts and circumstances, legal provisions and Grounds raised in the Application."
The facts of the case are that the applicant joined service as Scientific Assistant Group 'B' under the respondent on 28.09.1987. While working as Scientific Officer 'C' in Jagdalpur, the applicant was placed under suspension on 24.10.2005 and a charge sheet dated 04.05.2006 was issued to him based on the report dated 20.06.2005 of preliminary enquiry. There were eight articles of charge against the applicant. The first charge was that he misused his office-cum-stores-cum-residence with pre-plan for immoral activity or flesh trade by hiring two women for sex with himself and his two friends on 19.05.2005. The second charge was that he involved himself in immoral activity or flesh trade leading to police raid in his official residence at about 8.30 p.m. on 19.05.2005 and arrest of his two friends and the two women and that he left his official residence in the custody of outsiders in the absence of security personnel on 19.05.2005 and manipulated the duty of security guards. The third charge was that he was detained in police custody for immoral activity on 19.05.2005 and he was brought to his office-cum-residence around midnight of 19/20.05.2005 by police who seized some articles (TV, VCD and books) and took him back to the police station. The fourth charge was that he left the office-cum-stores-cum-residence in the custody of outsiders on 19.05.2005 (while his family was away) risking its safety and security. The fifth charge was that he detailed both the security guards for duty from 9 p.m. only though he should have detailed them during separate hours thus showing his pre-plan for immoral activity. The sixth charge was that he failed to report the incident of 19.05.2005 wherein two men and two women were arrested from the office-cum-stores-cum-residence and his detention either to his incharge (Resident Geologist) or to the Regional Director, Nagpur. The seventh charge was that he instructed the driver Sriram Netam to leave the camp without sanctioning leave and made false diary entry that he attended office on 20.05.2005 even though he was detained by police in the night of 19.05.2005 till about 1230 hours on 20.05.2005. The eighth charge was that he was responsible for tarnishing the organization's image as the incident of 19.05.2005 attracted publicity in five leading daily newspapers.
On denial of the charges by the applicant, an enquiry ensued and the enquiry officer submitted his report on 31.10.2007 finding the second, fourth (to the extent of misutilization of office-cum-residence) and sixth charges as proved and the other charges as not proved. The disciplinary authority, vide memorandum dated 01.02.2008, disagreed with the enquiry report opining that all charges stood proved and the applicant submitted his objections on 17.03.2008. The disciplinary authority imposed the penalty of dismissal from service vide order dated 16.07.2009 which was assailed by the applicant in OA No. 350 of 2009 whereupon this Tribunal, vide judgment and order dated 05.03.2015, set aside the punishment order giving liberty to the respondent to provide the advice of Union Public Service Commission (UPSC) to the applicant and thereafter take a decision. The respondent challenged this Tribunal's order dated 05.03.2015 in Writ Petition No. 1930 (SB) of 2016 which came to be dismissed by Hon'ble High Court on 01.02.2016.
The respondent reinstated the applicant in service vide order dated 05.10.2016 and supplied UPSC's advice to the applicant vide order dated 17.10.2016. The applicant submitted his representation on 03.11.2016. The disciplinary authority imposed the penalty of dismissal from service vide impugned order dated 03.04.2017 which was communicated to the applicant vide order dated 11.04.2017. Aggrieved, the applicant has preferred this OA.
The applicant's grievance is that he had asked for fifteen additional documents during the enquiry, but the enquiry officer provided only one document. His grievance also is that the duty chart of security guards (RUD-8) was not made available during the enquiry and thus charges two and four, which are similar, could not have been proved against him. His other grievance is that as he was neither arrested nor named in FIR, he could not have been held to be involved in flesh trade and as no incident took place in the official residence as alleged in the charge sheet, the sixth charge also could not have been held to be proved. Finally, the applicant contends that no punitive action could have been taken against him as none of the charges stood proved against him.
Per contra, the respondent states that all the relevant documents were provided. He also states that as the allocation of duty was not prepared or available, the attendance register was made available. He contends that deposition of three witnesses [Govind Ram (security guard), Laxman Singh (security guard) and Net Ram (driver)] establishes that the applicant was detailed in police station and raid was conducted by police in the house and TV/VCD were taken away even though no seizure report was made by the police. He also contends that the applicant did not inform the incident of police raid. Finally he contends that the disciplinary authority's disagreement with the enquiry report is based on material and circumstantial evidence on record.
We have heard both the parties.
It is evident from the narrative enumerated in paragraphs 2, 3 and 4 above that there is wide divergence between the applicant's claim, the findings of the enquiry and the conclusions of the disciplinary authority. Before we attempt resolution of the dispute, it would be apposite to remind ourselves of the scope of judicial review in departmental proceedings collated by Hon'ble Supreme Court in Union of India vs Subrata Nath in Civil Appeal No. 7939-7940 of 2022 arising out of SLP (C) 11021-22 of 2022 in following terms:
"15.It is well settled that courts ought to refrain from interfering with findings of facts recorded in a departmental inquiry except in circumstances where such findings are patently perverse or grossly incompatible with the evidence on record, based on no evidence. However, if principles of natural justice have been violated or the statutory regulations have not been adhered to or there are malafides attributable to the Disciplinary Authority, then the courts can certainly interfere.
16.In the above context, following are the observations made by a three-Judge Bench of this Court in B.C. Chaturvedi (supra) :
"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 reappreciate 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.
13.The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has coextensive power to reappreciate the evidence or the nature of punishment. In a disciplinary inquiry, the strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel this Court held at p. 728 that 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."
18.A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact-finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. 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." [Emphasis laid]
17.In State Bank of Bikaner and Jaipur v. Nemi Chand Nalwaya, a two Judge Bench of this Court held as below:
"7.It is now well settled that the courts will not act as an appellate court and reassess the evidence led in the domestic enquiry, nor interfere on the ground that another view is possible on the material on record. If the enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of the evidence or the reliable nature of the evidence will not be grounds for interfering with the findings in departmental enquiries. Therefore, courts will not interfere with findings of fact recorded in departmental enquiries, except where such findings are based on no evidence or where they are clearly perverse. The test to find out perversity is to see whether a tribunal acting reasonably could have arrived at such conclusion or finding, on the material on record. The courts will however interfere with the findings in disciplinary matters, if principles of natural justice or statutory regulations have been violated or if the order is found to be arbitrary, capricious, mala fide or based on extraneous considerations."
18.In Chairman & Managing Director, V.S.P. and Others v. Goparaju Sri Prabhakara Hari Babu, a two Judge Bench of this Court referred to several precedents on the Doctrine of Proportionality of the order of punishment passed by the Disciplinary Authority and held that :
"21.Once it is found that all the procedural requirements have been complied with, the courts would not ordinarily interfere with the quantum of punishment imposed upon a delinquent employee. The superior courts only in some cases may invoke the doctrine of proportionality. If the decision of an employer is found to be within the legal parameters, the jurisdiction would ordinarily not be invoked when the misconduct stands proved."
19.Laying down the broad parameters within which the High Court ought to exercise its powers under Article 226/227 of the Constitution of India and matters relating to disciplinary proceedings, a two Judge Bench of this Court in Union of India and Others v. P. Gunasekaran held thus :
"12.Despite the well-settled position, it is painfully disturbing to note that the High Court has acted as an appellate authority in the disciplinary proceedings, reappreciating even the evidence before the enquiry officer. The finding on Charge I was accepted by the disciplinary authority and was also endorsed by the Central Administrative Tribunal. In disciplinary proceedings, the High Court is not and cannot act as a second court of first appeal. The High Court, in exercise of its powers under Articles 226/227 of the Constitution of India, shall not venture into reappreciation of the evidence. The High Court can only see whether:
(a)the enquiry is held by a competent authority;
(b)the enquiry is held according to the procedure prescribed in that behalf;
(c)there is violation of the principles of natural justice in conducting the proceedings;
(d)the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case;
(e)the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations;
(f)the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion;
(g)the disciplinary authority had erroneously failed to admit the admissible and material evidence;
(h)the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding;
(i)the finding of fact is based on no evidence.
13.Under Articles 226/227 of the Constitution of India, the High Court shall not:
(i)reappreciate the evidence;
(ii)interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law;
(iii)go into the adequacy of the evidence;
(iv)go into the reliability of the evidence;
(v)interfere, if there be some legal evidence on which findings can be based.
(vi)correct the error of fact however grave it may appear to be;
(vii)go into the proportionality of punishment unless it shocks its conscience."
20.In Union of India and Others v. Ex. Constable Ram Karan, a two Judge Bench of this Court made the following pertinent observations :
"23.The well-ingrained principle of law is that it is the disciplinary authority, or the appellate authority in appeal, which is to decide the nature of punishment to be given to the delinquent employee. Keeping in view the seriousness of the misconduct committed by such an employee, it is not open for the courts to assume and usurp the function of the disciplinary authority.
24.Even in cases where the punishment imposed by the disciplinary authority is found to be shocking to the conscience of the court, normally the disciplinary authority or the appellate authority should be directed to reconsider the question of imposition of penalty. The scope of judicial review on the quantum of punishment is available but with a limited scope. It is only when the penalty imposed appears to be shockingly disproportionate to the nature of misconduct that the courts would frown upon. Even in such a case, after setting aside the penalty order, it is to be left to the disciplinary/appellate authority to take a call and it is not for the court to substitute its decision by prescribing the quantum of punishment. However, it is only in rare and exceptional cases where the court might to shorten the litigation may think of substituting its own view as to the quantum of punishment in place of punishment awarded by the competent authority that too after assigning cogent reasons."
21.A Constitution Bench of this Court in State of Orissa and Others (supra) held that if the order of dismissal is based on findings that establish the prima facie guilt of great delinquency of the respondent, then the High Court cannot direct reconsideration of the punishment imposed. Once the gravity of the misdemeanour is established and the inquiry conducted is found to be consistent with the prescribed rules and reasonable opportunity contemplated under the rules, has been afforded to the delinquent employee, then the punishment imposed is not open to judicial review by the Court. As long as there was some evidence to arrive at a conclusion that the Disciplinary Authority did, such an order becomes unassailable and the High Court ought to forebear from interfering. The above view has been expressed in Union of India v. Sardar Bahadur.
22.To sum up the legal position, being fact finding authorities, both the Disciplinary Authority and the Appellate Authority are vested with the exclusive power to examine the evidence forming part of the inquiry report. On finding the evidence to be adequate and reliable during the departmental inquiry, the Disciplinary Authority has the discretion to impose appropriate punishment on the delinquent employee keeping in mind the gravity of the misconduct. However, in exercise of powers of judicial review, the High Court or for that matter, the Tribunal cannot ordinarily reappreciate the evidence to arrive at its own conclusion in respect of the penalty imposed unless and until the punishment imposed is so disproportionate to the offence that it would shock the conscience of the High Court/Tribunal or is found to be flawed for other reasons, as enumerated in P. Gunasekaran (supra). If the punishment imposed on the delinquent employee is such that shocks the conscience of the High Court or the Tribunal, then the Disciplinary/Appellate Authority may be called upon to re-consider the penalty imposed. Only in exceptional circumstances, which need to be mentioned, should the High Court/Tribunal decide to impose appropriate punishment by itself, on offering cogent reasons therefor.
(emphasis supplied)
Coming to the case at hand, the gravest charge against the applicant is that he planned and he was involved in immoral activity or flesh trade with his two friends by hiring two women for sex. This charge was not found proved in the enquiry. However, the disciplinary authority held the charge as established relying on the letter dated 24.08.2005 from City Inspector, Police Station, Jagdalpur addressed to the respondents and taking note of the fact that the applicant had deployed the two guards from 10 p.m. to 6 a.m. while no guard was deployed at other hours.
We have perused the letter dated 24.08.2005 which states that having received information on 19.05.2005 that some boys and girls were indulging in 'masti' (frolic or mischief), two men and two women were found in suspicious circumstances in the applicant's residence by police personnel and the applicant was not present and the two men and women were proceeded against and when the applicant returned from market and was questioned he admitted presence of the two men in his house. The letter dated 24.08.2005 also mentions that no action was taken against the applicant and that he was advised suitably.
We have also perused the material on record, including the enquiry report and the preliminary enquiry report (RUD-1 of the charge sheet). It appears that the applicant invited a friend to his house on 19.05.2005 and this friend came with another person; having admitted them in the house, the applicant left the house for the market with a neighbour; on return, he found the house locked and came to know that the police had taken the two men to the police station with two women; he, then, visited the police station and answered some queries; the police brought him to his house where a search was conducted and some material seized; he was taken back to the police station and after some queries made by the Superintendent of Police next morning, he was allowed to return to his house with the material taken by the police (applicant's statement in the preliminary enquiry). Perusal of letter dated 03.10.2005 of the Superintendent of Police, Jagdalpur reveals that two men and two women were found in suspicious circumstances on 19.05.2005 near the applicant's house and were proceeded against, but no action was taken against the applicant as he was not present in the house at that point of time.
In regard to the deployment of two security guards together from 10 p.m. to 6 a.m. as noted by the disciplinary authority, it is observed that during their cross examination in the enquiry (with reference to charge 5) the two security guards stated that they had been performing their duty in this way for a long time and so the enquiry officer found charge 5 as not proved.
The enquiry has brought out that the applicant was not arrested nor was any seizure memo prepared by the police.
The above discussion brings out that there is no evidence on record to prove that the applicant was involved in hiring of the two women or that he had planned immoral activity in his office-cum-stores-cum-residence. Therefore, we have no hesitation to hold that the conclusion of the disciplinary authority that the applicant had planned and was involved in immoral activity (in disagreement with the finding of the enquiry) is unreasonable and arbitrary [P Gunasekaran (supra)].
It is not disputed that the applicant invited his friend to his office-cum-cum-residence and allowed entry of his friend and another person accompanying his friend in his office-cum-residence and then absented himself knowing fully well that no security guard was on duty at that point of time. Therefore, we see no reason to interfere with the findings of the enquiry officer in regard to the charges 2 and 4.
It is also not in dispute that the applicant did not inform his superiors of the incident on 19.05.2005 on his own. Therefore, the finding in the enquiry that charge 6 stands proved also brooks no interference from us.
There is one point on which we agree with the disciplinary authority, i.e., tarnishing the organization's image (charge 8). The enquiry officer has not found charge 8 as proved. However, the enquiry officer did find charge 2 as proved to the extent that the applicant misutilized his office-cum-stores-cum-residence. When the misutilization of residence is proved, the applicant cannot escape from accountability for the impact of adverse publicity in local newspapers, howsoever sensationalized, on the organization arising from such misutilization, in our view.
The applicant has raised objection about non availability of RUD-8 (record of allocation of duty of security guards). However, the availability of attendance register and the statements of the two security guards comprise adequate evidence, in our view [B C Chaturvedi (supra)]. The other objection of the applicant regarding additional documents was addressed in detail by the enquiry officer vide his letter dated 17.05.2007 and no prejudice appears to have been caused to the applicant on this count, in our view.
To sum up, we are in agreement with the findings of the enquiry pertaining to charges 2, 4 and 6 and with the conclusion of the disciplinary authority pertaining to charge 8.
Considering that we have found that the charge of planning and involvement in immoral activity on part of the applicant as not proved and as this was the gravest charge against the applicant in our opinion, we hold that the penalty of dismissal from service imposed on the applicant is grossly disproportionate and shocking to our conscience [Ram Karan (supra)]. Keeping in view of the facts and circumstances of the case, it would be appropriate if the disciplinary authority considers imposition of any penalty other than removal from service or dismissal from service on the applicant.
In view of the foregoing, we direct the respondent to review the impugned order dated 03.04.2017 imposing the penalty of dismissal from service and consider imposition of any penalty other than removal from service or dismissal from service on the applicant within three months from the date of receipt of certified copy of this order.
This OA is disposed of in above terms.
Associated MAs also stand disposed of.
Parties shall bear their own costs.