Govind vs The Central Administrative Tribunal and Others

S.B. Shukre, J.—Being aggrieved by dismissal of the petitioner from his service as unskilled labourer at Ordnance Factory, Ambazari and rejection of his Original Application No. 1005 of 1993 filed against his dismissal order, by the learned Members of Central Administrative Tribunal ("the Tribunal, for short), Mumbai Bench camp at Nagpur, the petitioner has filed the present petition.

On 24/10/1991 the petitioner was served with a chargesheet alleging misconduct on his part. The charge against the petitioner related to an attempt on the part of the petitioner to steal the Government property, consisting of 37 pieces of copper disks. The attempt was alleged to have been made by the petitioner in the morning of 03/10/1991. It was alleged that on that day, the petitioner tried to take out 37 pieces of copper disks through Gate No. 3 unauthorizedly and thus committed gross misconduct. The petitioner denied the charges and an enquiry into the charges was held. The Enquiry Officer found that even though there was no direct evidence of attempted theft, there was enough circumstantial evidence indicating that the said charge was true. The Disciplinary Authority concurred with the findings of the Enquiry Officer and by an order dated 11/9/1992, imposed the punishment of dismissal. An appeal was filed by the petitioner. It was also dismissed. Thereafter, the petitioner filed Original Application No. 1005 of 1993 before the Tribunal. After hearing the rival parties, the learned Members of the Tribunal found that no case was made out by the petitioner for making interference with the orders passed by the Departmental Authority and accordingly dismissed the Original Application by an order dated 22/4/1996.

We have heard Shri M. Shareef, learned Counsel for the petitioner and Mrs, Anjali Joshi for respondents No. 2, 3 and 4.

It is the contention of learned Counsel for the petitioner that there were no eye witnesses to the alleged attempt of theft made by the petitioner and that the so-called circumstantial evidence did not at all link the petitioner to his alleged misconduct. Therefore, there was no question of any probability overwhelmingly going against the petitioner and establishing his misconduct in the instant case, so submits the learned Counsel. The learned Counsel placed his reliance upon the case of Sher Bahadur Vs. Union of India (UOI) and Others, .

The learned Counsel for respondents No. 2, 3 and 4 strongly opposing the petition, submits that the Departmental Authority has, on the basis of preponderance of probabilities, found that there were strong circumstances indicating that the copper disks were recovered from the toilet which could not have been brought there by any person other than the petitioner. In support, she has particularly placed reliance upon the evidence showing that the copper disks were found to be wrapped in the same paper, which were of Reliance share forms, as the papers recovered from the person of the petitioner during his body search in the morning of 03/10/1991. She also submits that the petitioner was detailed in the night shift from 30/9/1991 to 05/10/1991, a notice in respect of which was already displayed on 27/9/1991 and, therefore, there was no reason for the petitioner to go into the factory in the morning of 03/10/1991 and that too out without taking a pass. She submits that all these circumstances are properly considered by the Disciplinary Authority and the learned Members of the Tribunal and, therefore, the order of the Tribunal cannot be viewed as perverse or illegal, justifying interference with it.

Upon consideration of the report dated 02/6/1992 of the Enquiry Officer, order of dismissal passed by the Disciplinary Authority, order of the Appellate Authority and also the order of the Tribunal passed in the Original Application, we are of the view that neither the Disciplinary Authority nor the Appellate Authority nor the learned Tribunal has taken into consideration a vital aspect of the case which related to presence of any link connecting the petitioner with the recovery of copper disks from the toilet and this failure on their part has resulted into passing of completely erroneous, rather perverse orders.

It is not in dispute that nobody has seen the petitioner as either entering the toilet or coming out of the toilet or keeping the copper disks in question in the toilet. The copper disks were recovered from the toilet and at the time of recovery, they were found to be wrapped in some papers which were of Reliance share forms. Similar papers were found from the person of the petitioner during his body search taken in the morning of 03/10/1991. This particular circumstance of presence on the person of the petitioner of similar papers has been taken as not a matter of coincidence but as a link connecting the petitioner together with other circumstances with his alleged misconduct. The other circumstances as noted in the impugned orders relate to entry of the petitioner in the factory in the morning of 03/10/1991 without obtaining any pass and the petitioner having knowledge about his being placed in the night duty from 30/9/1991 to 05/10/1991 and thus having no valid reason to come to the factory in the morning of 03/10/1991.

No doubt, the other circumstances regarding unauthorized entry of the petitioner inside the factory without any valid reason and without an entry pass may raise a strong suspicion against the petitioner. But, it is well settled law that suspicion howsoever strong it might be, cannot take place of evidence, which is so necessary even in departmental enquiry for establishing charges of misconduct against the delinquent-employee. The conclusions which are required to be recorded in a departmental enquiry must be based upon some evidence which should be considered to be sufficient by following the principle of preponderance of probability. But, the principle of preponderance of probability does not mean finding of guilt of the delinquent-employee on the basis of inadequate evidence or conjectures or by ignoring relevant facts or considering irrelevant facts or by sewing together some pieces of circumstances which are incongruent to or misfits with each other like a square peg in a round hole. As held in the case of M.V. Bijlani Vs. Union of India (UOI) and Others, by Hon''ble Apex Court, the enquiry officer performs a quasi-judicial function and is under a duty, upon properly analysing evidence on record, to arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of material on record.

In a case based upon circumstantial evidence, it is all the more necessary to ensure that there is sufficient evidence which meets the requirements of legal principles in the sense that circumstances are of such a nature as they in all probability lead to establishing a nexus between the charged employee and the alleged misconduct. In other words, one circumstance must lead to another ultimately showing that in all probability the misconduct is attributable to the delinquent-employee or all the circumstances when taken together should probabilise the commission of misconduct. If the circumstantial evidence is not appreciated by following these principles the High Court exercising it''s extra ordinary jurisdiction under Articles 226 and 227 of the Constitution of India would be justified in interfering with the conclusions arrived at by the enquiry officer. A useful reference in this regard could be made to observations of Hon''ble Apex court in the case of Moni Shankar Vs. Union of India (UOI) and Another, , which read thus :

"....The courts exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles. The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the Department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely, preponderance of probability..."

At this juncture, it is also necessary to see as to how the concept of "sufficiency of evidence" in domestic enquiry has been explained by the Hon''ble Apex Court in the case of Sher Bahadur (supra). The Hon''ble Apex Court has held that the expression, "sufficiency of evidence" postulates existence of some evidence which links the charged officer with the misconduct alleged against him. The relevant observations of the Hon''ble Apex Court appearing in paragraph 7 are reproduced for the sake of convenience as under.:

"It may be observed that the expression "sufficiency of evidence" postulates existence of some evidence which links the charged officer with the misconduct alleged against him. Evidence, however voluminous it may be, which is neither relevant in a broad sense nor establishes any nexus between the alleged misconduct and the charged officer, is no evidence in law..."

From the above observations, it would be clear that howsoever voluminous the evidence might be, the evidence which is neither relevant in a broad sense nor shows any nexus between the delinquent-employee and the alleged misconduct, is treated as no evidence in law.

In the case in hand, merely because the petitioner was found to have entered the factory premises in an unauthorized manner and only because the papers found on his person were having similarity to the papers used for wrapping the copper disks recovered from the toilet would not establish any nexus between the petitioner and the copper disks. There should have been some more circumstances which would have reasonably shown that the copper disks, in all probability, could not have been placed in the toilet by any person other than the petitioner. As said earlier, there being no evidence showing that somebody had seen the petitioner either going inside the toilet or coming outside the toilet at the relevant time, the circumstances of unauthorized presence of the petitioner and his having similar papers on his person would not by themselves connect the petitioner with the misconduct alleged against him. The vital link missing in the entire chain of circumstances has also been missed by the authorities making the impugned orders perverse and illegal.

In the circumstances, we find that the impugned orders cannot be sustained in law. Accordingly, the petition deserves to be allowed and it stands allowed.

I. The impugned order dated 12/9/1992 dismissing the petitioner from service passed by the respondents, the order dated 11/8/1993 dismissing the appeal and the order passed by the learned Tribunal dated 22/4/1996 are quashed and set aside. However, we find that since the petitioner has not placed anything on record to show that the petitioner was not gainfully employed during the period for which he was out of service, we are not inclined to grant any order of back wages to the petitioner.

II. The petitioner would be entitled to the actual pensionary benefits with effect from the date on which the Judgment is pronounced.

III. Needless to state that the petitioner would be entitled to continuity in service for all the benefits including pensionary benefits though the petitioner has been denied the claim of back wages.

Rule is made absolute in the aforesaid terms. No order as to costs.