Union Of India & Ors. vs Shri Ravi Kumar

Prasenjit Biswas, J:-

The writ petitioner, while serving as a Constable in the Central Industrial Security Force, was posted at the Tunnel Gate of IISCO Steel Plant, Burnpur, West Bengal, on 4^th October 2013 during the ‘B’ shift, i.e. from 13:00 hours to 21:00 hours, under the administrative control of ‘A’ Company. It was alleged that at about 21:00 hours on that day, the petitioner permitted a red-coloured Tata Sumo vehicle to enter the plant premises without conducting the requisite security checks. The vehicle was subsequently noticed in suspicious circumstances, parked in front of the storage yard of M/s Anupam Industries situated within the plant area, with six persons standing behind it. Upon being challenged, the said persons attempted to flee; three of them succeeded in escaping, while the remaining three were apprehended and found in possession of two Hexa Blades. In connection with the said occurrence, a First Information Report was lodged at Hirapur Police Station.

Following the incident, the Assistant Commandant placed the petitioner under suspension by an order dated 7^th October 2013. Thereafter, the Commandant, CISF Unit, ISP, Burnpur, issued a memorandum of charge on 15^th October 2013 alleging dereliction of duty and serious misconduct. The petitioner submitted his written explanation on 25^th October 2013, specifically denying all the allegations levelled against him.

A departmental enquiry was thereafter initiated and conducted against the petitioner. Upon completion of the enquiry, a copy of the enquiry report was supplied to him, and he was afforded an opportunity to submit his representation against the findings recorded therein, which he duly submitted.

Subsequently, by a memorandum dated 28^th February 2014, the disciplinary authority imposed the penalty of removal from service upon the petitioner. Aggrieved by the said order, the petitioner preferred a statutory appeal on 22^nd March 2014; however, the appellate authority rejected the appeal by an order dated 7^th May 2014. The petitioner thereafter invoked the revisional jurisdiction of the competent authority, but the revision petition also came to be dismissed on 21.01.2015.

Challenging the entire disciplinary process, the petitioner instituted a writ petition seeking quashing of the charge memorandum, the enquiry report, the order of removal from service, the appellate order, and the revisional order. The learned Single Judge, upon consideration of the materials on record, allowed the writ petition and set aside the impugned disciplinary actions. The correctness and legality of the said judgment and order passed by the learned Single Judge are the subject matter of challenge in the present intra-court appeal.

Learned Additional Solicitor General appearing for the appellants said that the writ petition itself was liable to be dismissed on the ground of gross delay and laches, inasmuch as the petitioner approached the writ court after a lapse of more than two years from the date of the impugned disciplinary action. According to the learned A.S.G., despite such inordinate delay, the petitioner did not furnish any plausible or satisfactory explanation for not approaching the Court within a reasonable period. It is, therefore, submitted that the learned Single Judge ought to have declined to exercise the discretionary jurisdiction under Article 226 of the Constitution in favour of a litigant who remained indolent and failed to explain the cause for such prolonged delay. Learned A.S.G placed reliance upon the decision passed by the Apex Court in case of Chennai Metrpolitan Water Supply and Sewerage Board and Others vs. T.T. MuraliBabu reported in (2014) 4 SCC 108 (paragraphs 16 and 17).

It is further submitted by the learned Additional Solicitor General that the allegations levelled against the petitioner were of a grave and serious nature, striking at the very core of the duties entrusted to a member of the Central Industrial Security Force (CISF). The CISF is entrusted with the responsibility of protecting vital industrial installations and preventing unauthorized entry into sensitive plant premises. Any lapse in the discharge of such duties, particularly at an entry gate, has serious security implications.

The learned A.S.G. contended that the petitioner cannot take shelter under the plea of inexperience. The records disclose that he had joined the CISF in the year 2010, whereas the incident occurred on 04.10.2013. By that time, he had already completed nearly three years of service and had received adequate training and practical exposure regarding the standard operating procedures governing security checks at sensitive industrial establishments.

Attention has also been drawn to the defence statement submitted by the petitioner during the departmental proceeding, wherein he admitted that his duty at the Tunnel Gate had been properly briefed by ASI/Exe. Md. Alim and HC/GD R.N. Upadhaya. According to the appellants, this admission clearly establishes that the petitioner was fully aware of the procedure for checking vehicles and persons entering the plant premises, and therefore his subsequent plea of inadequate instruction is wholly untenable.

The learned A.S.G. further submitted that the departmental evidence clearly established that the vehicle was allowed to enter the plant premises without proper security checking. It was pointed out that barely 10 seconds were consumed in permitting the vehicle to pass through the gate, during which neither the gate pass was properly examined nor any effective physical verification of the vehicle or its occupants was carried out. Such conduct, according to the appellants, amounted to a serious dereliction of duty and a clear breach of the prescribed security protocol.

Referring to the findings of the Enquiry Officer, it was contended that the substance of the charge was that the petitioner permitted the concerned Tata Sumo vehicle to enter the protected premises without proper checking. The discrepancy regarding the registration number, whether recorded as WB-30H-9084 or WB-40H-9084, was argued to be merely clerical in nature and not a material infirmity affecting the core allegation of negligent gate-checking.

Reliance was also placed on the testimony of S.I./Exe. Dharamveer Kardam, who had monitored the CCTV footage of the relevant period and stated that a four-wheeler was seen entering the plant premises while the sentry on duty opened the gate and allowed its entry. The learned A.S.G. submitted that this electronic evidence corroborated the allegation that the vehicle was permitted entry while the petitioner was performing gate duty.

It was argued that the suspicious vehicle remained inside the plant premises for a considerable period and was intercepted only during subsequent patrolling by CT/GD Ram Nath and other CISF personnel, who found six persons present in suspicious circumstances near Anupam Industries, of whom three managed to flee. According to the appellants, this sequence of events clearly demonstrates the seriousness of the security lapse committed at the Tunnel Gate and establishes a direct nexus between the negligent gate-checking and the unauthorized presence of suspicious persons within the plant premises.

Lastly, the learned Additional Solicitor General contended that the learned Single Judge exceeded the permissible scope of judicial review by reappreciating the evidence adduced in the departmental proceeding and substituting the Court’s own assessment in place of the findings recorded by the disciplinary authority. It was submitted that the writ court does not exercise appellate jurisdiction over disciplinary findings and cannot examine the sufficiency or adequacy of evidence when the enquiry has been conducted in accordance with law and the findings are supported by some relevant material on record.

According to the learned A.S.G., the petitioner was afforded full opportunity to defend himself, no violation of the principles of natural justice was established, and the findings of the Enquiry Officer were based upon relevant materials, including oral evidence and CCTV footage. Reliance was placed upon the decisions of the Hon’ble Supreme Court in Union of India & Others v. P. Gunasekaran, reported in (2015) 2 SCC 610, B.C. Chaturvedi v. Union of India & Others, reported in (1995) 6 SCC 749, as well as the decision of a co-ordinate Bench of this Court in Union of India v. R. Kasivelu passed in M.A.T. 2290 of 2004. It was submitted that in view of the aforesaid decisions, interference with the findings of the Enquiry Officer by undertaking an independent appreciation of evidence is wholly impermissible.

The learned A.S.G. further submitted, relying upon the judgment of the Hon’ble Supreme Court in Om Kumar & Others v. Union of India reported in (2021) 2 SCC 386 (particularly paragraphs 24, 26 and 39), that the question of quantum of punishment primarily falls within the domain of the disciplinary authority. The power of judicial review under Article 226 of the Constitution of India is confined to examining whether the decision suffers from the vice of arbitrariness, irrationality, or any other infirmity applying the well-settled Wednesbury principles.

It was emphasized that the CISF is a disciplined armed force entrusted with the protection of critical industrial installations, where a high degree of vigilance, integrity, and devotion to duty is indispensable. Any lapse in security checking at the entry point of such a sensitive establishment cannot be viewed lightly, as it may endanger valuable property and public safety. It was, therefore, submitted that the misconduct proved against the petitioner constituted a serious breach of duty and the punishment imposed by the disciplinary authority was neither disproportionate nor liable to interference by the writ court.

Per contra, learned Advocate appearing for the writ petitioner supported the judgment and order passed by the learned Single Judge and contended that the findings recorded in the disciplinary proceeding are wholly unsustainable, being founded on conjectures and surmises rather than on legally admissible evidence.

It was emphatically submitted that the charge against the writ petitioner was not established by any cogent or reliable material. According to the learned Advocate, there was a complete absence of corroborative evidence connecting the petitioner with the alleged unauthorized entry of the vehicle in question into the plant premises. Referring specifically to the testimony of Dharamveer Kardam, it was contended that even from his statement it did not emerge that the vehicle had entered the premises through the Tunnel Gate or that it was the writ petitioner who had permitted such entry without verifying the requisite gate pass. The witness, according to the learned Advocate, did not depose any fact whatsoever, capable of implicating the petitioner in the alleged misconduct. In the absence of any statement of witness, documentary evidence, CCTV footage identifying either the vehicle or the petitioner, or any independent witness supporting the allegation, the conclusion arrived at by the Enquiry Officer was wholly unsupported by the evidence on record.

The learned Advocate further argued that the disciplinary proceeding stood vitiated on account of a fundamental violation of the principles of natural justice. It was submitted that an Enquiry Officer conducting a domestic enquiry is under an obligation to act fairly, objectively and with an open and unbiased mind. In the present case, however, the manner in which the enquiry was conducted clearly demonstrated that the Enquiry Officer had proceeded with a predetermined approach and was intent on holding the charges proved irrespective of the evidentiary deficiencies. Such a course, it was urged, destroys the very foundation of a fair domestic enquiry and renders the entire proceeding null and void.

In support of the aforesaid contention, reliance was placed upon the decision of the Hon’ble Supreme Court in Kuldeep Singh v. Commissioner of Police & Others, reported in (1999) 2 SCC 10, wherein the Apex Court held that a finding in a disciplinary proceeding which is based on no evidence, or which is such that no reasonable person could have arrived at on the basis of the material available on record, is liable to be interfered with in exercise of judicial review. The learned Advocate submitted that the present case squarely falls within the said principle, as the finding of guilt is not supported by any evidence and is therefore perverse in law.

It was further contended that where the record itself discloses perversity in the decision-making process or a patent error apparent on the face of the record, the High Court would be fully justified in exercising its writ jurisdiction to quash the disciplinary action. In this regard, reliance was placed on the judgment of the Hon’ble Supreme Court in Union of India v. H.C. Goel, reported in AIR 1964 SC 364, wherein it was held that although the High Court does not sit as an appellate authority over disciplinary findings, it can interfere where the conclusion reached by the disciplinary authority is unsupported by any evidence and is therefore legally unsustainable.

On the strength of the aforesaid submissions, the learned Advocate urged that the learned Single Judge had rightly appreciated the glaring absence of evidence and the procedural infirmities vitiating the enquiry. According to him, no error of law or jurisdiction has been demonstrated in the judgment under appeal warranting interference by this Court in exercise of its intra-court appellate jurisdiction. It was, therefore, prayed that the instant intra-court appeal be dismissed outright with affirmation of the order passed by the learned Single Judge

We have given our anxious and thoughtful consideration to the rival submissions advanced on behalf of the parties and has carefully examined the materials placed on record.

Learned counsel for the appellants sought to contend that the writ petition ought not to have been entertained on account of delay and laches in view of decision passed by the Hon’ble Supreme Court in case of Chennai Metropolitan Water Supply (supra). In the said case, the Apex Court was dealing with a situation where the employee had approached the Court after an inordinate delay of about four years. The Supreme Court observed that it is the duty of the Court to carefully scrutinize whether such enormous delay deserves to be ignored in the absence of any satisfactory explanation, and that a litigant who remains indolent for a prolonged period cannot, as a matter of course, invoke the extraordinary jurisdiction of the High Court.

The factual matrix of the present case, however, stands on a materially different footing. Here, the petitioner had promptly pursued the statutory remedies available to him by filing both the appeal and the revision within the prescribed framework. The writ petition was instituted only after the revisional authority had rejected his challenge on 21^st January 2015. Although there was a lapse of approximately two years before the writ petition was filed, the delay cannot be viewed in isolation or treated as indicative of negligence or abandonment of rights. The records disclose that the petitioner had been continuously contesting the disciplinary action and had exhausted all departmental avenues before approaching the writ court.

Upon an overall appreciation of the materials on record, it cannot be said that the petitioner had adopted a lackadaisical or indifferent attitude towards the assertion of his legal rights. The delay, viewed in the context of the sequence of departmental proceedings and the nature of the challenge raised, does not amount to such inordinate or unexplained laches as would disentitle him from seeking judicial review. Consequently, the ratio laid down in T.T. Murali Babu (supra), which turned on a substantially longer and unjustified delay, does not advance the case of the appellants in the facts and circumstances of the present matter. We are, therefore, unable to accept the contention that the writ petition was liable to be dismissed solely on the ground of delay and laches.

In view of the law laid down by the Hon’ble Supreme Court in P. Gunasekaran, after considering the earlier decision in case of B.C. Chaturvedi particularly paragraph 12 thereof, the scope of judicial review in disciplinary matters is extremely limited. The High Court, while exercising jurisdiction under Articles 226 of the Constitution, does not sit as an appellate authority over the findings recorded by the Enquiry Officer or the disciplinary authority. It cannot undertake a fresh appreciation or re-evaluation of the evidence as if it were hearing a regular appeal against the departmental decision.

The Apex Court has categorically held that the High Court cannot reassess the credibility of witnesses, weigh the sufficiency of the evidence, or substitute its own conclusions for those reached by the disciplinary authority. The Court can only examine whether the decision-making process suffers from any of the infirmities enumerated in paragraph 12 of P. Gunasekaran. Accordingly, the High Court may look into the evidence adduced in the disciplinary proceeding only for the limited purpose of ascertaining:

Thus, the distinction drawn by the Supreme Court is between “re-appreciation of evidence”, which is impermissible, and “examining whether there exists some legally acceptable evidence to support the finding”, which is permissible. If there is some evidence on record which reasonably supports the conclusion of guilt, the High Court normally should not interfere merely because another view is possible or because the evidence may appear insufficient in its opinion.

However, where the record discloses that the finding has been recorded without any supporting evidence, or that the evidence relied upon is wholly irrelevant, inadmissible, or incapable of establishing the charge, the High Court would be justified in interfering, not by re-evaluating the evidence, but by holding that the finding is vitiated by perversity and falls within clauses (e), (g) and (h) of paragraph 12 of P. Gunasekaran.

In the present context, the Court was not required to reassess the evidence as an appellate forum. Its scrutiny is confined to determining whether the disciplinary authorities acted within the bounds of law, observed the principles of natural justice, and recorded findings supported by some admissible and relevant evidence. Only when the findings are demonstrably arbitrary, perverse, or based on no evidence can interference in writ jurisdiction be warranted in terms of the principles authoritatively laid down in P. Gunasekaran (supra).

In the present case, the entire edifice of the departmental proceeding substantially rests upon the evidence of Dharamveer Kardam, who was treated as the principal witness for the appellants. His evidence assumes considerable importance because, according to the respondents, he was the person who was monitoring the security checking at the tunnel gate on the relevant date and time. A scrutiny of his deposition reveals that he merely stated that at about 18:58 hours one vehicle entered the plant premises and that a sentry opened and thereafter closed the gate. Significantly, he categorically stated that from the CCTV footage neither the registration number nor the colour of the vehicle could be clearly ascertained.

The learned Additional Solicitor General appearing for the appellants attempted to contend that the petitioner was standing in the shadow area of the CCTV camera and, therefore, had deliberately concealed himself so that he could not be recognized. He submitted that there is no dispute that he was posted at the gate. Therefore there is no iota of doubt that the sentry in the CCTV footage was none other than the petitioner. Such an inference, in our considered view, is wholly speculative and unsupported by any cogent material. Suspicion, however strong, cannot take the place of proof, particularly in a disciplinary proceeding where findings must be founded on some legally acceptable and reliable evidence. The mere circumstance that a portion of the area covered by the CCTV camera was shadowed cannot lead to an irresistible conclusion that the petitioner intentionally hid himself to avoid identification. Dharamveer Kardam did not depose that he had personally seen the petitioner opening the gate or permitting the vehicle to enter. His statement was confined to the fact that “one sentry” opened and closed the gate.

Despite the aforesaid factual position emerging from the evidence on record, the Presenting Officer proceeded on the premise that it stood conclusively established that the petitioner had allowed a vehicle bearing Registration No. WB-40H-9084 to enter the plant premises through the tunnel gate. Such a conclusion, in our considered view, is wholly unsustainable and is clearly inconsistent with the evidence adduced during the enquiry proceeding.

The principal witness relied upon by the appellants, namely Dharamveer Kardam, categorically stated that at about 18:58 hours a vehicle entered the plant premises and that a sentry opened and thereafter closed the gate. However, he further stated in unequivocal terms that from the CCTV footage neither the registration number of the vehicle nor its colour could be properly ascertained. Therefore, the very evidence on which the appellants sought to place reliance failed to establish two essential and foundational facts: first, that the vehicle in question was red in colour; and that the vehicle was bearing Registration No. WB-40H-9084. The statement also does not say that the petitioner was the person/ sentry who permitted its entry into the premises.

In a departmental proceeding, though the strict rules of the Indian Evidence Act may not apply, the findings must nevertheless rest upon some legally acceptable and reliable material. A charge cannot be held to be proved merely because it appears probable or because suspicion arises against the delinquent employee. The authority conducting the proceeding is required to arrive at its conclusion on the basis of evidence which has a rational nexus with the finding recorded. Where the evidence itself is uncertain, incomplete, or incapable of establishing the foundational facts, any conclusion drawn in excess of such evidence would necessarily be arbitrary.

The CCTV footage constituted the primary objective material in the present case. Once the witness monitoring the footage admitted that the registration number could not be discerned and that the petitioner was not visible or identifiable therein, the Presenting Officer could not legitimately assert that the petitioner had allowed vehicle No. WB-40H-9084 to enter the plant premises. There was no corroborative evidence produced to bridge this evidentiary gap. No witness claimed to have personally seen the petitioner permitting the entry of the said vehicle, nor was any contemporaneous record produced establishing that the vehicle intercepted later was the same vehicle that had entered through the tunnel gate.

The conclusion reached by the Presenting Officer, therefore, was not a reasonable inference based on any evidence whatsoever. A reasonable inference must be founded upon established circumstances from which the conclusion naturally and logically flows. In the present case, the conclusion was reached despite the absence of proof regarding the identity of the vehicle and the identity of the person who allegedly permitted its entry. Such reasoning amounts to substituting conjecture for evidence and assumption for proof.

Accordingly, the finding that the petitioner had allowed vehicle No. WB-40H-9084 to enter the plant premises was not supported by any substantive evidence available in the enquiry. The conclusion was based on conjectural assumptions unsupported by the materials on record and, therefore, could not constitute a valid foundation either for the enquiry report or for the consequential order of punishment.

The matter becomes even more serious when one examines the findings of the Enquiry Officer. The Enquiry Officer recorded that the petitioner had permitted the vehicle to gain entry into the plant premises and further observed that this fact had been admitted by the petitioner. We have carefully gone through the records of the enquiry and we do not find any statement, written or oral, amounting to an admission by the petitioner that he had allowed the vehicle to enter through the tunnel gate. The petitioner consistently denied the allegation. In the absence of any such admission, the Enquiry Officer could not have treated the same as an admitted fact. Recording a finding on the basis of a non-existent admission strikes at the very root of fairness in a quasi-judicial proceeding. Such findings manifestly perverse.

It is a settled principle of law that a disciplinary authority, while exercising powers under service jurisprudence, acts as a quasi-judicial authority. Consequently, its conclusions must be based on some evidence which a reasonable person could accept as supporting the charge. The authority cannot proceed on assumptions, surmises, or conjectures, nor can it attribute admissions to a delinquent employee when no such admission exists on record. Equally, an Enquiry Officer cannot supply missing links in the evidence by drawing speculative inferences adverse to the employee.

In the present case, the essential ingredients of the charge were required to be proved by reliable evidence, namely: (i) that a particular vehicle bearing Registration No. WB-40H-9084 entered through the tunnel gate; (ii) that the petitioner was the sentry who opened the gate and permitted the entry; and (iii) that such entry was allowed without proper checking. None of these foundational facts has been established by acceptable evidence. The CCTV footage did not identify the vehicle or the petitioner; the principal witness did not identify the petitioner; the alleged admission of the petitioner is demonstrably non-existent; and the testimony of the remaining witnesses suffers from material contradictions.

In such circumstances, the enquiry report cannot be said to rest upon any substantive evidence. The findings recorded therein are clearly perverse, being based partly on conjectures and partly on facts not borne out from the record. Since the order of punishment is founded upon such defective findings, it cannot be sustained in law. The learned Single Judge, upon an appraisal of the materials, rightly concluded that the findings suffered from perversity and that the punishment order was vitiated for want of evidence.

Having independently examined the entire matter, we find no infirmity, illegality, or perversity in the reasoning or conclusions recorded by the learned Single Judge warranting interference in appellate jurisdiction.

Accordingly, the appeal stands dismissed.

The learned Single Judge had directed the respondents to reinstate the writ petitioner with full back wages within a period of four weeks from the date of the order. It is evident that the said period has already expired and the direction has not yet been complied with.

In view of the aforesaid circumstances, and having regard to the fact that the time granted by the learned Single Judge has elapsed, the respondents are hereby directed to comply with the directions contained in the order passed by the learned Single Judge, including reinstatement of the petitioner with full back wages, within a further period of six weeks from the date of this order.

Accordingly, connected application being no. CAN 2 of 2023 is also dismissed.

There will be no order as to costs.

Urgent Photostat certified copy of this order, if applied for, be supplied to the parties upon compliance with all requisite formalities.

I agree.