The Union of India vs Shaktivel

Subrata Talukdar, J.—Aggrieved by the order impugned dated 20th December, 2013 passed by the learned Central Administrative Tribunal, Calcutta sitting in Circuit at Port Blair in OA. No. 159/AN/2011 in the matter of Shri Shaktivel versus Union of India and others, the Government has filed the present WPCT No. 078 of 2014.

By the order impugned, the learned Central Administrative Tribunal (for short CAT) had accepted the contention of the respondent, who was the applicant in the O.A., on the point that the Article of charges against him could not be proved.

The learned CAT was of the view that the authority, who is the petitioner in this WPCT and was the respondent in the O.A., could not produce the original records before the Learned CAT to verify whether there was any over writing by the respondent in the duty register of the relevant dates, i.e. the 3rd of August, 2007 and the 4th of August, 2007.

The learned CAT was of the further view that the authority had failed to examine whether the over writing was done in the hand writing of the respondent because the matter was never referred to a hand writing expert. Hence, on the test of preponderance of probability the respondent could not be held guilty of over writing. Also upon examination of copies of the relevant duty register the learned CAT was of the opinion that the substance of the change made out in 2nd Article of Charge that the respondent had inserted his coy No. in a vacant space could not be borne out as it was found that only the dates in the duty register were sought to be over-written and there was no over-writing in the body of the said duty register.

The learned CAT took note of the fact that the 1st Article of Charge against the present respondent related to an alleged crime dated the 3rd of August, 2007 pertaining to the theft of a motor cycle. A criminal case was registered on the 4th of August 2007 at Police Station Rangat and the present respondent was arraigned as an accused in the said criminal case. Pertaining to the said alleged theft of motor cycle, the present respondent, who was serving in the capacity of PC (Driver)/1553 of the Andaman and Nicobar Islands Fire Service was also slapped with a disciplinary proceeding under Rule 9.3 of the Andaman and Nicobar Police Manual 1963.

As noted earlier while the 1st Article of charge pertained to the alleged theft of the motor cycle, 2nd Article of charge pertained to the alleged over writing in the duty register by the present respondent. 3rd Article of charge pertained to the allegations the present respondent leaving his headquarter without any permission/intimation and purported to be on medical leave, such conduct being inconsistent with the duties as a member of a disciplined force.

The learned CAT arrived at the finding that the present respondent having stood absolved in the departmental proceedings of 1st Article of Charge, i.e. alleged theft of the motor cycle, there could be no reason for the present respondent to make any over writing in the duty register to show his presence on the dates of the alleged crime. Furthermore, the present respondent could not conclusively be held to have made the over writing in the absence of production of the original records and failure on the part of the authority to get the hand writing compared by an expert.

The learned CAT also found that the evidence on record "is not enough to nail down the applicant". Furthermore, there is contrary evidence with regard to each of the charges and witnesses for the prosecution have not conclusively either seen or stated that the present respondent is guilty of either 1st Article of Charge or 2nd Article of Charge.

Discussing the law in this regard, the learned CAT finally held that the punishment of dismissal from service imposed on the present respondent is disproportionate when seen in the perspective of absenteeism as embodied in 3rd Article of Charge. Therefore, according to the learned CAT, the authority has failed to prove the charges and the reasoning of the disciplinary authority affirming the guilt of the present respondent is flawed. The disciplinary authority was required to give independent reasons in support of its conclusion punishing the present respondent with dismissal.

The learned CAT therefore quashed the order of penalty as well as the order of the appellate authority. The matter was remanded to the disciplinary authority for passing a reasoned order afresh on proper appreciation of the records.

Shri S.K. Mandal, learned senior counsel appearing for the present petitioner-authority has strenuously argued that the learned CAT exceeded its jurisdiction by discussing the evidence for and against the present respondent. Shri Mandal points out that the learned CAT was only required to see that the disciplinary proceedings were carried out in a manner consistent with the principles of natural justice. According to him, the learned CAT could not have acted as a Civil Court or a Criminal Court while assessing the evidence.

He further submits that there is no whisper of any allegation against the authority that the present respondent was not given adequate opportunity to contest the departmental proceedings. At all stages, the present respondent was given an adequate opportunity to defend himself and the departmental enquiry culminated in a reasoned order which was affirmed by the Appellate Authority.

Shri Mandal further points out that prior to taking the decision to hold a departmental enquiry, the authority obtained a preliminary enquiry report and, on the basis of the evidence collected in the preliminary enquiry report it was decided to issue the Article of Charges against the present respondent.

Taking this Court to the proceedings of the departmental enquiry, Shri Mandal argues that each of the officers involved namely, enquiry officer, disciplinary authority and the appellate authority have taken pains to apply their independent minds to the conduct of the present respondent and found enough materials against him. In view of such findings the respondent was no longer fit to continue as a member of the disciplined force.

Shri Mandal has also vociferously argued that the learned CAT was patently wrong in holding that in absence of the original records and without comparing the hand writing of the present respondent, his guilt could not be sustained. He has argued that the original records pertaining to the duty register are a part of the case records of the criminal trial pending before the learned Magistrate. In such circumstances, the authority had produced the Xerox copy of the original records before the learned CAT and that ought to have been construed to be sufficient for the purpose of finally determining the lis.

According to Shri Mandal, the evidence on record is enough to nail the present respondent and the learned CAT committed a patent perversity by substituting its own mind and reasoning to that of the competent authority responsible for holding the departmental proceedings.

Shri Mandal relies heavily on the evidence of the prosecution adduced by one Raj Dubey, ASI incharge of Fire Station Bakultala before whom the present respondent reportedly admitted to have tampered with General Dairy entry No. 139 dated 03.08.2007 in his hand writing with a black pen. Shri Mandal argues that such admission should have been construed to be adequate for the learned CAT to come to a conclusion that the present respondent is guilty of the charges. In support of his argument, Shri Mandal relies upon the following decisions:

(i) Bank of India and Others Vs. T. Jogram, on the point of judicial review in respect of a decision making process. In the said decision, the Hon''ble Apex Court held that judicial review is not against the decision but against the decision making process and when there are no allegations of procedural irregularities/illegality and also there are no allegations of violation of principles of natural justice, no prejudice can be said to have been caused to the delinquent and it would not be a fit case for judicial review.

(ii) The High Court of Judicature at Bombay, Through Its Registrar Vs. Shashikant S.Patil and Another, wherein the Hon''ble Apex Court has held that interference with the decision of the departmental authorities can be permitted only in circumstances when such authority had held proceedings in violation of the principles of natural justice or in violation of statutory regulations prescribing the mode of such enquiry or if the decision of the authority is vitiated by considerations extraneous to the evidence and merits of the case or the conclusion of the authority is so arbitrary that no reasonable person could have arrived at such a conclusion. The Hon''ble Apex Court further held that if the enquiry has been properly conducted then the departmental authority is the sole judge of the facts and reliability of the evidence is not a matter to be canvassed in a writ petition.

(iii) High Court of Judicature at Bombay through ite Registrar Vs. Udaysingh Nimbalkar and Others, wherein the Hon''ble Apex Court reiterated the principle that in any departmental enquiry supported by evidence and involving an officer in a public service, when the misconduct shakes the confidence of the general public and involves integrity and character of the officer in question, the imposition of the punishment of dismissal is well justified.

(iv) State Bank of India and Others Vs. Ramesh Dinkar Punde, wherein the Hon''ble Apex Court was of the view that when an officer of the Bank commits misconduct which touches his diligence, integrity and character, such misconduct must be dealt with iron hands.

Shri Mandal concludes by stating that the present respondent is a member of a disciplined force and hence is required to maintain the highest standards. The Article of Charges goes to show that the respondent has shockingly deviated from the standards of service required in a disciplined force. In such circumstances, the reasonable course of action adopted by the disciplinary authority is to order his dismissal from service which ought not to have been interfered with by the learned CAT.

Per contra, Mrs. Anjili Nag, appearing for the present respondent submits that the present departmental proceeding is a case of no evidence at all. She takes this Court to several portions of the evidence recorded in the inquiry. She has argued that if the evidence of the prosecution witnesses is compared, then several inconsistencies would appear therefrom.

By way of an example, she takes this Court to page 94 of WPCT No. 078 of 2014 which is the evidence of one Narayan Mistry for the prosecution. The said Narayan Mistry has stated that the General Duty Register dated 02.08.2007 to 04.08.2007 was opened and closed by him since he was on day duty. It is the further evidence of the said Narayan Mistry that there was no over writing on any of the said dates, i.e. 02.08.2007 to 04.08.2007 on the pages of the General Diary.

Mrs. Nag thereafter takes this Court to page 98 of the WPCT which is the statement of one Shri Balakrishna Lohar for the prosecution. Responding to a specific question whether there was any over writing on the date which appeared below his signature, Shri Lohar has stated that it was written by him.

Further taking this Court to the other evidence taken in the department proceeding, Mrs. Nag has strenuously contended that the purported admission of the present respondent before the prosecution witness ASI R.S. Dubey during roll call admitting over writing in his own hand seriously contradicts the evidence of other prosecution witness to the effect that the duty rosters were written in two different hand writings. Such contradiction, according to Mrs. Nag, appear on comparison at various pages of WPCT namely; page 89, page 94, page 98, page 102, page 103, page 106, page 107, page 109 and page 113 which are the evidence of prosecution witnesses taken in the departmental proceedings.

Mrs. Nag submits that since several prosecution witnesses have admitted to over writing by their hand, then assuming but not admitting that the present respondent is also responsible for such over writing, in the absence of any charge against any of the other prosecution witnesses who are also members of a disciplined force in the face of their admission, it must be presumed that over writing ipso facto cannot be treated to be an offence. For these reasons, no general dairy entry was recorded in respect of any individual case of over writing.

Reiterating her stand that even the prime suspect in the criminal case pertaining to the theft of motor cycle, one Munishwaran has stated before the departmental authority that he was coerced by the investigating officer of the criminal case, one ASI Gurmeet Singh into roping the present respondent in the criminal case, Mrs. Nag has emphasized that even the criminal charge against the present respondent is not free from doubt. According to her, the learned CAT has not evaluated any evidence but only applied the Wednesbury principles. In the absence of clinching evidence against the present respondent with respect to each of the charges, the learned CAT was correct in quashing the order of penalty.

Mrs. Nag submits that in any view of the matter the punishment imposed against the present respondent who joined service in 1992 and had enjoyed an unblemished career as a member of the disciplined force till the present departmental proceeding, is unwarranted and disproportionate on the test that even on preponderance of probability the guilt of the present respondent could not be conclusively proved.

On 3rd Article of charge, Mrs. Nag, has submitted that it is not the case of the authority that the present respondent had deserted his post or, was not available at the time when he was required to be available to meet any emergent situation. According to her, it is the norm in service to apply for medical leave in advance and such leave is usually regularized upon the return of the officer to duty. In the facts of the case, the present respondent took medical leave and, while being on medical leave, a false criminal case was initiated against him. Therefore, the respondent was compelled to obtain anticipatory bail from the Hon''ble High Court. The contention of the authority that the present respondent was not available for duty and availed of his leave to obtain anticipatory bail from the Hon''ble High Court, according to Mrs. Nag, is absurd to state the least. In the event the present respondent was so inclined, he would have obtained casual leave for a day and filed his anticipatory bail application before the Hon''ble High Court. Therefore, Mrs. Nag submits that the present respondent had no ulterior design or malafide motive. Rather he was a victim of circumstances and being the sole earning member of his family with wife and children to support as well as on the substratum of the woeful evidence marshalled by the disciplinary authority, the punishment of dismissal is shockingly disproportionate.

In support of her submission Mrs. Nag relies upon the following decisions:

(i) M.V. Bijlani Vs. Union of India (UOI) and Others, wherein the Hon''ble Apex Court has, inter alia, held that although the jurisdiction of the court in judicial review is limited, disciplinary proceedings being quasi-criminal in nature, there should be some evidence to prove the charge. The test of proof in a disciplinary proceeding being preponderance of probability, the onus is on the disciplinary authority to prove the charge on the basis of the materials on record. While doing so, the disciplinary authority cannot take into consideration any irrelevant fact or refuse to consider the relevant facts or shift the burden of proof or reject the relevant testimony of witnesses only for the purpose drawing its own conclusion.

(ii) Krushnakant B. Parmar Vs. Union of India (UOI) and Another, wherein the Apex Court has reiterated the principles of judicial review in Bijlani'' case (supra).

Heard the parties. Considered the materials on record.

At the very outset this Court is unable to agree with the contention of Mrs. Nag that this is a case of no evidence at all. However, at the same time, this Court finds that the nature of contradictory evidence on record in support of 2nd Charge as well as the fact that the Inquiry Officer did not find 1st Article of Charge to be established against the respondent supports the view that in the particular backdrop of this lis the imposition of penalty of dismissal is shockingly disproportionate.

In this connection, this Court must notice the law laid down by the Hon''ble Apex Court with regard to applying the doctrine of proportionality qua the scope of judicial review. In Coimbatore District Central Cooperative Bank-vs.-Coimbatore District Central Cooperative Bank Employees Association and another reported in (2007) 4 Supreme Court Cases 669 the Hon''ble Apex Court held as follows:-

"Proportionality" is a principle where the court is concerned with the process, method or manner in which the decision-maker has ordered his priorities, reached a conclusion or arrived at a decision. The very essence of decision-making consists in the attribution of relative importance to the factors and consideration in the case. The doctrine of proportionality thus steps in focus true nature of exercise-the elaboration of a rule of permissible priorities.

de Smith states that "proportionality" involves "balancing test" and "necessity test". Whereas the former (balancing test) permits scrutiny of excessive onerous penalties or infringement of rights or interests and a manifest imbalance of relevant considerations, the latter (necessity test) requires infringement of human rights to the least restrictive alternative. ''[Judicial Review of Administrative Action (1995), pp. 601-05, para 13.085; see also Wade & Forysth: Administrative Law (2005), p. 366.]

In Halsbury''s Laws of England (4th Edn.), Reissu, Vol. I(1) pp. 14-45, para 78, it is stated:

That court will quash exercise of discretionary powers in which there is no reasonable relationship between the objective which is sought to be achieved and the means used to that end, or where punishments imposed by administrative bodies or inferior courts are wholly out of proportion to the relevant misconduct. The principle of proportionality is well settled in European law, and will be applied by English courts where European law is enforceable in the domestic courts. The principle of proportionality is still at a stage of development in English law; lack of proportionality is not usually treated as a separate ground for review in English law, but is regarded as one indication of manifest unreasonableness.

This court is also inclined to note with satisfaction the ratio of the Hon''ble Apex Court laid down in M.V. Bijlani'' case (supra).

Although, prima facie, the arguments advanced by Mr. S.K. Mandal are attractive to the extent that the instant departmental proceedings have been conducted in a transparent manner by complying with the principles of natural justice, the failure of the disciplinary authority to proportionately assess the contradictory strands of evidence in respect of the Articles of Charges and, to impose the penalty of dismissal has no doubt caused grave miscarriage of justice to the respondent.

While this Court is not oblivious to the fact that in judicial review the Court will not substitute its decision in the matter of assessment of evidence to that of the administrative authority, on the other hand, the Court definitely cannot close its eyes to glaring deficiencies in the decision making process.

This Court is of the further view that even the test of preponderance of probability applicable to the decision making process cannot be construed in a vacuum but, must be construed with reference to the substratum of the application of mind to the relevant evidence and, as held by the Hon''ble Apex Court in Coimbatore District Central Cooperative Bank'' case on the rule of permissible priorities. This Court is required to perform the balancing test which must weigh the requirement of the employer qua the right of the delinquent officer.

It has emerged from the pleadings and the arguments that the evidence on record is not conclusive against the respondent. For such reason, the Inquiry Officer was of the opinion that the 1st Article of Charge was not proved. Although this Court is unable to agree with the contention of Mrs. Nag that in the absence of proof of 1st Article of Charge the requirement of the respondent to commit the overwriting as alleged in 2nd Article of Charge stood automatically waived, at the same time the appreciation of evidence by the department in connection with 2nd Article of Charge was not unequivocal enough to point to the guilt of the respondent even on the test of preponderance of probability. However, the disciplinary authority did find substance, with some merit, in respect of 3rd Article of Charge and in spite of Mrs. Nag''s strenuous arguments that there could be no absolute requirement for the respondent to always remain on duty and he could avail of medical leave, the conduct of the respondent in applying for medical leave and thereafter proceeding to obtain anticipatory bail behind the back of the authority points to the fact that the disciplinary authority was not altogether wrong in its assessment of 3rd Article of Charge.

This Court further finds that the respondent has been in service since 1992. He had completed nearly 15 years of service without any adverse record and, this is the first departmental proceeding that the respondent has faced.

Moreover, from the respondent''s own representation it is found that he is the sole earning member of his family with children to support. Therefore, applying the test of proportionality in the background of the evidence assessed by the departmental authority and the past service record of the respondent, this Court finds it appropriate to modify the impugned order of the learned Tribunal dated 20th December, 2013 by only quashing the order of penalty dismissing the respondent from service which, to the mind of this Court is wholly disproportionate with the further direction that the disciplinary authority shall re-visit the penalty except the penalty of dismissal/removal/termination to be imposed on the respondent on a proper balance of the factors as discussed above.

The disciplinary authority shall pass its final order and communicate the same to the respondent. The entire exercise must be completed within a period of four weeks from the date of communication of this order.

WPCT NO. 078 OF 2014 is accordingly disposed of. There shall, however, be no order as to costs.