Suresh Girl vs Union of India,Ministry of Home & Ors.

D. K. Seth, J.—By an order dated 23rd September, 1983, the petitioner was removed from service which is Annexure14 to the writ petition pursuant to the finding of guilt in an enquiry held against the petitioner. The petitioner''s appeal dated 30th September, 1983 (Annexure15) was dismissed by an order dated 4th of May, 1984 (Annexure16). These two orders have been challenged by means of this writ petition.

Mr. Tapan Ghosh, learned counsel for the petitioner contends that by reasons of Section 18 of the Central Industrial Security Force Act, 1968, subsection (2A), once a criminal proceeding has been initiated in an ordinary court of criminal jurisdiction, no further domestic enquiry can be held in respect of the same charges. He further contends that the finding is based on no material and the procedure adopted is perverse and void. Inasmuch as according to him once a criminal proceeding is initiated, there is no procedure laid down in Rule 34 so as to proceed simultaneously with kinds of proceedings or one after the other.

Mr. Ashok Mohilay, learned counsel for the respondent on the other hand contends that there is no bar in proceeding with the domestic enquiry irrespective of the finding to the effect of acquittal or submission of final report in the criminal proceedings. According to him Section 18, subsection (2A) is not a bar to proceed with the domestic enquiry as contemplated in Rule 34 of the Central Industrial Security Force Rules, 1969. Mr. Mohilay contends further that there are certain evidence to which he had refer to on the basis whereof the finding has been arrived at. Referring to the decision in the cases of J.D. Jain v. Management, State Bank of India, AIR 1982 SC 673 and State of Tamil Nadu and another v. S.R. Subramanian, JT 1996 (2) SC 114, he contends that this Court while deciding the question relating to finding arrive at a domestic proceedings does not sit on appeal on the finding.

After having heard learned counsel for the parties, it appears that Section 18 provides for trial of offence by the Commandant who is vested with the powers of a Magistrate of any class in certain conditions. When the Commandant records reasons in writing that it is not practical for him to enquire in the offence as a Magistrate, the same may be decided by the ordinary criminal court having jurisdiction in the matter and the territory. The said provision has been engrafted in subsection (2A) of Section 18 with the provisions for prosecution under any other law as contended in subsection (3).

In order to appreciate this situation, it is necessary to refer to the said provisions as quoted below:

"18. Penalties for neglect of duty etc.(1) Without prejudice to the provisions contained in Section 8, every member of the Force who shall be guilty of any violation of duty or wilful breach of neglect or any rule or regulation or lawful order made by a supervisory officer, in or who shall withdraw from the duties of his office without permission or who absent or leave, fails without reasonable cause, to report himself for duty on the expiration of the leave, or who engages himself without authority in any employment other than his duty as a member of the Force, or who shall be guilty or cowardice, may be taken into Force custody and shall, on conviction be punished with imprisonment for a term which may extend to one year.

(2) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Act 2 of 1974) an offence punishable under this section shall be cognizable and nonbailable.

(2A) Notwithstanding anything contained in the Code of Criminal Procedure, 1973 (Act 2 of 1974 the Central Government may invest the Commandant with the powers of a Magistrate of any class for the purpose of inquiring into or trying any offence committed by an enrolled member of the Force and punishable under this Act, or any offence committed by enrolled member of the Force against the persons or property of another member of the Force :

Provided that:

(i) when the offender is on leave or absent from duty; or

(ii) when the offence is not connected with the offender''s duties as an enrolled member of the Force; or

(iii) when it is a petty offence even if connected with the offenders duties as an enrolled member of the Force; or

(iv) when for reasons to be recorded in writing, it is not practicable for the Commandant invested with the powers of a Magistrate to inquire into or try offence, the offence may, if the prescribed authority with in the limits of whose jurisdiction the offence has been committed so required be inquired into or tried by an ordinary criminal court having jurisdiction in the matter.

(3) Nothing contained in this case section shall be construed to prevent any member of the Force from being prosecuted under any other law for any offence made punishable by that law, or for being liable under any such law to any other higher penalty or punishment than is provided for such offence by this Section :

Provided that no person shall be punished twice for the same offence."

The plain reading of the said provisions reveals that in case of certain offences, the Commandant who is vested with the power of Magistrate may try the same and in case of his inability as mentioned there in the same can be tried by an ordinary criminal court. But the said provisions does not prevent prosecution of a member of the force under any other law for any offences made punishable by that law or for being liable under any such law to any other or higher, penalty or punishment than is provided for such offences by this Section.

This provisions, therefore, does not bar trial of the petitioner or subjecting him to any disciplinary proceedings at the same time, this Section has not created any specific bar in express terms. In order to bar the application for domestic enquiry, a specific expressed or implied provision to be foundout from the four corners of the Act itself. No where in the Act any such condition is provided as has been sought to be made out by Mr. Ghosh.

On the other hand Section 22 provides that the Central Government may by notification in the official Gazette may make rules for carrying out the purposes of this Act. Such rule is to be made by laying the same before each House of the Parliament while in session. The said provision reveals that the rules are also being made by the Parliament. As such the Rules have the same statutory force as that of the Act. Until the provisions relating to holding of domestic enquiry provided in the rules are held to be ultra vires or the same is found to be wholly inconsistent and irreconcilliable, the same cannot be ignored or overlooked.

Section 22 in subsection (2) provides for making of rules in respect of different steps and matters as provided in different clauses indicated there under.

The relevant provision of Section 22(2) of the said Act is quoted below:

"22(2) In particularand without prejudice to the generality of the foregoing powers, such rules may provide for

(a) regulating the classes, ranks, grades, pay and remuneration of (xxx) members of the Force and their conditions of service in the Force;

(b) regulating the powers and duties of (xxx) members of the force authorised to exercise any functions by or under this Act;

(c) fixing the period of service for l(xxx) members of the Force;

(d) prescribing the description and quantity of arms, accoutrements, clothing and other necessary articles to be furnished to the members of the Force;

(e) prescribing the places of residence of members of the Force;

(f) institution, management and regulation of any fund for any purpose connected with the administration of the Force;

(g) regulating the punishments and prescribing authorities to whom appeals shall be preferred from orders of punishment, or remission of fines or other punishmentand the procedure to be followed for the disposal of such appeals ;

(gg) regulating matters with respect to Force custody under this Act including the procedure to be followed for taking persons into custody;

(ggg) regulating matters with respect of disposal of cases relating to offences under this Act and specifying the places in which persons convicted under this Act may be confined.

(h) the terms and conditions subject to which 2 (xxx) members of the Force may be deputed u/S. 14 and the charges therefore; and

(i) any other matter which has to be, or may be, prescribed or in respect of which rules are required to be made under this Act. Section 22, therefore, provides for making of rules relating to conditions of services and regulation of punishments and other matters. Accordingly Rule 34 of the Rules, provision for imposing major penalties and the procedure therefore has been provided. Rule 35 prescribes the procedure for imposing minor penalties.

It is not disputed that the procedure laid down in Rule 34 has not been followed. Nothing in the Rule points out that once a criminal proceeding is initiated, the domestic enquiry cannot be proceeded with. On the other hand subsection (3) of Section 18 makes it clear that notwithstanding prosecution in the ordinary criminal Court or by the commandant in exercise of the power conferred upon him under Subsection (2) of S. 18, the delinquent may be subjected to such other penalities. However, in the present case, a final report was submitted in the criminal proceedings. The final report does not preclude the operation of subsection (3) and thereby eclipse the procedure laid down in Rules, 34 and 35.

in that view of the matter, I do not find any infirmity in the proceedings undertaken against the petitioner. Therefore, I am unable to agree with the contents of Mr. Ghosh in this regard.

So far as the contention of Mr. Ghosh with regard to the merit of the case that there was no evidence worth its name so as to establish the guilt of the petitioner. He had led me through the evidence which are Annexures 8, 9, 10, 11 and 12 to the writ petition. According to him in the evidence of one Shri A. K. Gupta and Shri S. S. Vidyarthi, nothing has been mentioned about the petitioner. The allegations made in the evidence of Shri Ranveer Singh and Shri R. S. Negi and Bhoota Singh are not sufficient to hold the petitioner guilty of offences and that those evidences according to Mr. Ghosh cannot be relied upon.

Mr. Ashok Mohilay, learned counsel for respondent on the other hand translating the relevant portions of Annexure10, 11 and 12 being the evidence of Ranveer Singh, P.S. Negi and Bhoota Singh and points out that there are some material evidences recorded in the said statement which has since been believed by the disciplinary authority. According to him, it cannot be said that there is no evidence or there was no material. Relying on the decisions cited by him he contends that since there is some material evidence, this Court cannot delve into the exercise of determining the question of fact even if it is of a different opinion, on the basis of material placed before it since the evidence has been appreciated by the disciplinary authority. In the case of/. D. Jain, (supra), it has been observed as follows:

"The learned Tribunal has committed another error in holding that the finding of the domestic enquiry was based on ''hearsay'' evidence. The law is well settled that the strict rules of evidence are not applicable in a domestic enquiry.

This Court in the case of State of Haryana v. Rattan Singh reported in AIR 1977 SC1512 held (at p. 1513):

"It is well settled that in a domestic enquiry the strict and sophiscated 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."

In the case of Subramaniam (supra), it has been held:

"The only question is: whether the Tribunal was right in its conclusion to appreciate the evidence and to reach its own finding that the charge has not been proved. The Tribunal is not a court of appeal. The power of judicial review of the High Court under Article 226 of the Constitution of India was taken away by the power under Article 323A and invested the same on the Tribunal by Central Administrative Tribunal Act. It is settled law that the Tribunal has only power of judicial review of the administrative action of the appellant on complaints relating to service conditions of employees. It is the exclusive domain of the disciplinary authority to consider the evidence on record and to record findings whether the charge has been proved or not. It is equally settled law that technical rules of evidence has no application for the disciplinary proceedings and the authority is to consider the material on record. In judicial review, it is settled law that the court or Tribunal has no power to trench on the jurisdiction to appreciate the evidence and to arrive at its own conclusion. Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. It is meant to ensure that the delinquent receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the view of the court or tribunal. When the conclusion reached by the authority is based on evidence, Tribunal is devoid of power to reappreciate the evidence and would come to its own conclusion on the proof of the charge. The only consideration the Court/Tribunal has in its judicial review is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. This is consistent view of this Court vide. B. C. Chaturvedi v. Union of India, JT 1995 (8) SC 65 : 1996(1) LBESR 424 (SC); State of Tamil Nadu v. T. V. Venugopalan, (1994) 6 SCC 302 (Para 7) ; Union of India v. Uprendra Singh (1994) 3 SCC 357 at para 6 ; Government of Tamil Nadu v.A. Rajapandian (1995) 1 SCC 216 (para 4) ; and Union of India v. B. S. Chaturvedi, (1995) 6 SCC 749 at 75960.

In so far as the above case is concerned the extent of jurisdiction while exercising the power of judicial review by the Central Administrative Tribunal has been considered on the analogy, it has some power which vested in the High Court under Article 226 was endowed on the Tribunal. Even then if the jurisdiction of the Tribunal could be circumscribed to the extent above, in that event the question would be even strict when exercising the writ jurisdiction which refrains from entering into disputed question of fact.

So far as the contention of Mr. Ghosh that the procedure is illegal and cannot be sustained as already been answered. In that view of the matter, this writ petition fails and is accordingly dismissed.

No order as to costs.