Ekramul Haque vs NHPC Limited & Ors.

“30. ACTION ON THE INQUIRY REPORT

30.1

The Disciplinary Authority if it is not itself the Inquiring Authority may for the reasons to be recorded by it in writing remit the case to the same or another inquiring authority for fresh or further inquiry and report, and the inquiring authority thereupon proceed to hold the further inquiry according to the provisiotis of Rule 29 as far as may be.

30.2

The Disciplinary Authority shall forward or cause to be forwarded a copy of the report of the inquiry, if any, held by the Disciplinary authority. Where the Disciplinary authority is not the Inquiring authority, on receipt of Inquiry Report from the Inquiring authority, if he agrees with the Inquiry Report then a copy of the Inquiry Report shall be provided to the Charged Officer by the Disciplinary Authority giving 15 days' time to the Charged officer, from the date of receipt of the said report to make any representation on the Inquiry Report if he desires so, failing which it will be presumed that the Charged Officer has nothing to say in the said matter and appropriate decision would be taken by the Disciplinary Authority, based on evidence on record, Inquiry Report etc. (Amended vide O/o 41/2022 dated 08.04.2022)

30.3

If the Disciplinary Authority having regard to its findings on all or any of the articles of charges is of the opinion that any of the penalties specified in rule 27 should be imposed on the employee, it shall notwithstanding anything contained in Rule 31, make an order imposing such penalty.

NOTE:

i.

It should normally possible for the Disciplinary Authority to take a final decision on the Inquiry report within a period of three months.

ii.

However, in cases which require consultation with the Central Vigilance Commission (CVC), within three months from the date of receipt of comments from CVC (Amended vide 0/0 41/2022 dated 08.04.2022)

30.4

If the Disciplinary Authority having regard to its findings on all or any of the articles of charges is of the opinion that no penalty is called for, it may pass an order exonerating the employee concerned.”

“17.

We find that the High Court has exceeded its jurisdiction while exercising the power of judicial review over the orders passed in the disciplinary proceedings which were conducted while adhering to the principles of natural justice.

18.

The High Court failed to notice the fact that in the charge sheet issued on 27.6.1993, the allegation was that the writ petitioner failed to perform his fatigue duty from 9 to 10 am and was disobedient to the lawful orders issued to him. There was no allegation of use of a fire arm leading to death of Shri Harish Chander and injuries to Shri Hari Singh.

19.

The writ petitioner completed his fatigue duty at 10 am and then reported for duty at the Headquarters. In the later Charge Sheet dated 25.2.2013, the departmental witnesses have uniformly deposed that the noise of firing of 15-20 gun shots was heard around 11 am on 11.4.1993. In fact, PW-6 Constable D.K. Mishra is the one who immobilized the writ petitioner when he was in the process of loading another magazine in the self-loading rifle. Still further, PW-5 Brij Kishore Singh has deposed that 3-4 soldiers had taken the self-loaded rifle of the writ petitioner. Such self-loaded rifle is the one which was issued to the writ petitioner.

20.

The statement of some of the departmental witnesses was that they heard that the writ petitioner used his personal weapon but such part of the statements is hearsay evidence. It was open to the writ petitioner to lead evidence that he was not using the official weapon but a personal weapon to rebut the stand of the Department.

21.

A three-Judge Bench of this Court in State of Haryana & Anr. v. Rattan Singh, (1977) 2 SCC 491 was dealing with the issue of non-examination of passengers when the allegation against the conductor was non-issuance of the tickets. This Court held that in a domestic enquiry, strict and sophisticated rules of evidence under the Indian Evidence Act may not apply and that all materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. This Court held as under:

"4.

It is well settled that in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case-law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. Of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good. However, the courts below misdirected themselves, perhaps, in insisting that passengers who had come in and gone out should be chased and brought before the tribunal before a valid finding could be recorded. The `residuum' rule to which counsel for the respondent referred, based upon certain passages from American Jurisprudence does not go to that extent nor does the passage from Halsbury insist on such rigid requirement. The simple point is, was there some evidence or was there no evidence - not in the sense of the technical rules governing regular court proceedings but in a fair commonsense way as men of understanding and worldly wisdom will accept. Viewed in this way, sufficiency of evidence in proof of the finding by a domestic tribunal is beyond scrutiny. Absence of any evidence in support of a finding is certainly available for the court to look into because it amounts to an error of law apparent on the record. ..........."

22.

This Court in Union of India & Ors. v. P. Gunasekaran, (2015) 2 SCC 610 had laid down the broad parameters for the exercise of jurisdiction of judicial review. The Court held as under:

"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."

"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 [(1964) 4 SCR 718 : AIR 1964 SC 364 : (1964) 1 LLJ 38] 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."

"11.

The respondent on the other hand contends that the Commissioner has applied the well-settled legal position that there can be no presumption of misconduct by the employees. That, charge must be proved by the Department during the inquiry. Non-examination of the material witnesses such as eyewitnesses present on the spot, conductor and passengers, travelling on the same bus was fatal. For, it entails in not substantiating the charges against the respondent and failure to discharge the initial onus resting on the Department to prove the charge as framed. According to the respondent, no fault can be found with the tangible reasons recorded by the Commissioner as noticed by the Single Judge (reproduced above); and resultantly, the conclusion of the Commissioner of not according approval to the order of dismissal is just and proper. It is submitted that the Single Judge was justified in allowing the writ petition preferred by the respondent and issuing direction to the appellant to reinstate him with back wages and continuity of service and all attendant benefits accrued to him."

"11.

As far as acquittal of the appellant by a criminal court is concerned, in our opinion, the said order does not preclude the Corporation from taking an action if it is otherwise permissible. In our judgment, the law is fairly well settled. Acquittal by a criminal court would not debar an employer from exercising power in accordance with the Rules and Regulations in force. The two proceedings, criminal and departmental, are entirely different. They operate in different fields and have different objectives. Whereas the object of criminal trial is to inflict appropriate punishment on the offender, the purpose of enquiry proceedings is to deal with the delinquent departmentally and to impose penalty in accordance with the service rules. In a criminal trial, incriminating statement made by the accused in certain circumstances or before certain officers is totally inadmissible in evidence. Such strict rules of evidence and procedure would not apply to departmental proceedings. The degree of proof which is necessary to order a conviction is different from the degree of proof necessary to record the commission of delinquency. The rule relating to appreciation of evidence in the two proceedings is also not similar. In criminal law, burden of proof is on the prosecution and unless the prosecution is able to prove the guilt of the accused "beyond reasonable doubt", he cannot be convicted by a court of law. In a departmental enquiry, on the other hand, penalty can be imposed on the delinquent officer on a finding recorded on the basis of "preponderance of probability". Acquittal of the appellant by a Judicial Magistrate, therefore, does not ipso facto absolve him from the liability under the disciplinary jurisdiction of the Corporation. We are, therefore, unable to uphold the contention of the appellant that since he was acquitted by a criminal court, the impugned order dismissing him from service deserves to be quashed and set aside."

"11.

A bare perusal of the order which has been quoted in its totality goes to show that the same is not based on any rational foundation. The conceptual difference between a departmental inquiry and criminal proceedings has not been kept in view. Even orders passed by the executive have to be tested on the touchstone of reasonableness. [See Tata Cellular v. Union of India [(1994) 6 SCC 651] and Teri Oat Estates (P) Ltd. v. U.T., Chandigarh [(2004) 2 SCC 130].] The conceptual difference between departmental proceedings and criminal proceedings have been highlighted by this Court in several cases. Reference may be made to Kendriya Vidyalaya Sangathan v. T. Srinivas [(2004) 7 SCC 442 : 2004 SCC (L&S) 1011], Hindustan Petroleum Corpn. Ltd. v. Sarvesh Berry [(2005) 10 SCC 471 : 2005 SCC (Cri) 1605] and Uttaranchal RTC v. Mansaram Nainwal [(2006) 6 SCC 366 : 2006 SCC (L&S) 1341].

"8.

... The purpose of departmental inquiry and of prosecution are two different and distinct aspects. The criminal prosecution is launched for an offense for violation of a duty, the offender owes to the society or for breach of which law has provided that the offender shall make satisfaction to the public. So crime is an act of commission in violation of law or of omission of public duty. The departmental inquiry is to maintain discipline in the service and efficiency of public service. It would, therefore, be expedient that the disciplinary proceedings are conducted and completed as expeditiously as possible. It is not, therefore, desirable to lay down any guidelines as inflexible rules in which the departmental proceedings may or may not be stayed pending trial in the criminal cases against the delinquent officer. Each case requires to be considered in the backdrop of its own facts and circumstances. There would be no bar to proceed simultaneously with departmental inquiry and trial of a criminal case unless the charge in the criminal trial is of grave nature involving complicated questions of fact and law. Offense generally implies infringement of public duty, as distinguished from mere private rights punishable under criminal law. When the trial for a criminal offense is conducted it should be in accordance with proof of the offense as per the evidence defined under the provisions of the Indian Evidence Act, 1872 [in short `the Evidence Act']. The converse is the case of departmental inquiry. The inquiry in a departmental proceeding relates to conduct or breach of duty of the delinquent officer to punish him for his misconduct defined under the relevant statutory rules or law. That the strict standard of proof or applicability of the Evidence Act stands excluded is a settled legal position. ... Under these circumstances, what is required to be seen is whether the departmental inquiry would seriously prejudice the delinquent in his defense at the trial in a criminal case. It is always a question of fact to be considered in each case depending on its own facts and circumstances."

"7.

...There is yet another reason. The approach and the objective in the criminal proceedings and the disciplinary proceedings is altogether distinct and different. In the disciplinary proceedings, the question is whether the respondent is guilty of such conduct as would merit his removal from service or a lesser punishment , as the case may be, whereas in the criminal proceedings the question is whether the offences registered against him under the Prevention of Corruption Act (and the Penal Code, 1860, if any) are established and, if established, what sentence should be imposed upon him. The standard of proof, the mode of enquiry and the rules governing the enquiry and trial in both the cases are entirely distinct and different. Staying of disciplinary proceedings pending criminal proceedings, to repeat, should not be a matter of course but a considered decision. Even if stayed at one stage, the decision may require reconsideration if the criminal case gets unduly delayed."