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SI/EXE 872320068 AJIT SINGH versus I.G., C.I.S.F. & OTHERS

High Court of Judicature at Allahabad

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Si/Exe 872320068 Ajit Singh v. I.G., C.I.S.F. & Others - WRIT - A No. 49303 of 2002 [2005] RD-AH 2575 (8 September 2005)

 

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HIGH COURT OF JUDICATURE OF ALLAHABAD

                                                                                                RESERVED

CIVIL MISC. WRIT PETITION NO.49303 OF 2002

SI/Exe-872320068 Ajit Singh  

                  Vs.

Inspector General,

Central Industrial Security Force Patna

                 -------------------------  

Hon'ble Tarun Agarwala, J.

The petitioner is a Sub Inspector in Central Industrial Security Force. A disciplinary action was initiated against the petitioner under Rule 34 of the Central Industrial Security Force Rules 1969 ( hereinafter referred to as the Rules ). On 7.3.1998, the petitioner was served with a memorandum alongwith the  charges, namely,

i] that the petitioner, while on duty as Duty Officer, took away some pieces of G.I. Sheet of different sizes from the plant unauthorisedly on 9.7.1997 in the Jeep without any valid documents.

ii] that the petitioner tried to tamper  the witness by threatening to murder.

iii] that during the service, the petitioner was awarded penalties for various offences on eleven occasions, inspite of which, he did not improve his conduct.

The petitioner submitted his reply and thereafter participated in the enquiry proceedings. Full opportunity was provided to the petitioner in the enquiry proceedings. The Enquiry Officer submitted a detailed report. Based on the enquiry report, the petitioner was served with a show cause notice to which he replied. The disciplinary authority, after considering the reply of the petitioner and the enquiry report and the evidence that was brought on the  record, passed an order dated 30.3.99 imposing a penalty of dismissal from the service .

Aggrieved, the petitioner filed an appeal. The appellate authority partly allowed the appeal  by its order dated 21.9.99. The order of dismissal was set aside and the petitioner was awarded a penalty of the reduction of the pay to the minimum stage in the time-scale of pay of a Sub-Inspector for a period of seven years. The

                                               2.

appellate authority further directed that the period from the date of dismissal to the date of the order passed in appeal would be treated as "Dies-non" for all purposes. In pursuance of the appointment order, the petitioner joined and also preferred a revision which was rejected by the Revisional Authority by its order dated 9.10.2000.

The petitioner has now preferred the present writ petition praying for the quashing of the appellate order as well as the revisional order in so far as it relates to the quantum of the punishment awarded  to him.

Heard Sri Suneet Kumar, the learned counsel for the petitioner and Sri Ravi Pratap Singh, the learned counsel for the respondents.

The learned counsel for the petitioner submitted that the punishment awarded was harsh and was grossly disproportionate  to the misconduct especially when the appellate authority came to the conclusion that the charges levelled against the petitioner was only partly proved. The learned counsel further submitted that since the charge of the removal of the G.I.sheets was not conclusively proved, the appellate authority should have acquitted him instead of reducing the punishment.

On the other hand, the learned counsel for the respondents contended that the discretion exercised by the appellate authority does not require any interference inasmuch as the charges stood proved and, the appellate authority instead of confirming the order of the disciplinary authority reduced the punishment on the strength of its findings that the charges were not conclusively proved against the petitioner.

Before proceeding any further, it is necessary to find out the exact findings given by the Enquiry Officer in its report. The Enquiry Officer found that all the three charges stood proved against the petitioner. The disciplinary authority, however, held that charges No.1 and 3 were proved "beyond a reasonable doubt" and that charge no.2

was not proved. The disciplinary authority further found that the conduct of the petitioner was grave and serious in nature and therefore, awarded the penalty of dismissal with immediate effect.

                                                3.

The appellate authority, after sifting through the evidence held that the charge no. 1, namely, the removal of the G.I. Sheets, could not be said to have been "conclusively proved." This reasoning of the appellate authority was based on the fact that no F.I.R. was lodged against the loss of the G.I.sheets and that the store keeper was unaware of the number of GI sheets kept there or that  a theft of the GI sheets had taken place. The appellate authority, however, held that the petitioner must have been involved in the removal of the G.I. Sheets on the strength of the evidence given by the driver, who deposed that the petitioner with the help of  another person, loaded the jeep with the G.I. Sheets and that the sheets were unloaded at the residence of the petitioner as well as the evidence of the constable posted at the Main Gate who deposed that the vehicle was loaded with GI sheets, but allowed it to go out of the main gate when the petitioner indicated that he was taking it out under the orders of the Commandant. In view of the aforesaid, the appellate authority concluded that charge no.1 stood "partially proved" and considering his past record held that the punishment awarded by the disciplinary authority was disproportionate to the misconduct and therefore, reduced the punishment.

From the aforesaid, it is clear that the disciplinary authority held that charge no.1 was proved "beyond a reasonable doubt", whereas the appointing authority found that charge no.1 was not "conclusively proved" and that it was "partially proved"  though the appellate authority was convinced that the appellant was involved in some murky activities in the removal of the GI sheets and that his past record also did not speak well of him, rather it led to the conclusion that  that he had committed the theft.

From a perusal of the appellate order, it is clear that there existed a shadow of doubt in the mind of the appellate  authority and that is why the appellate authority held that even though he was

convinced that the petitioner had committee a theft, the same was "not conclusively proved" and that it was "partially proved". In my view,

the appellate authority was under a misconception that the charges

                                              4.

levelled against the petitioner was required to be proved beyond a reasonable doubt as required in a criminal case .

The standard of proof in a criminal proceeding before a criminal Court is entirely different than that required in a domestic enquiry proceedings. I had the occasion to dwell upon this issue in Abhay Raj Singh v. Bank of Baroda and another, 2005 [105] F.L.R. 121 in which I had held-

"It is well settled principle of law that the degree of proof required in a departmental inquiry is vastly different than the degree of proof required to prove a criminal charge. In the departmental inquiry the finding can be recorded in preponderance of probabilities and it is not necessary that the charge must be proved to the hilt. The departmental proceedings and the criminal proceedings are entirely different in nature. They operate in different fields and they have different objectives. The materials or the evidence in the two proceedings may or may not be the same and, in some cases, at least, materials or evidence which would be relevant or open for consideration in the departmental proceeding, may be irrelevant in the criminal proceeding. The Rules relating to the appreciation of the evidence in the two inquiries may also be different. The standard of proof, the mode of enquiry and the rules governing the enquiry and the trial in both the cases are entirely distinct and different."

The law is well settled, that an Enquiry Officer can come to a different conclusion than that arrived at by a criminal Court. In Union of India v. Sardar Bahadur, 1972[4] SCC- 618, the Supreme Court held that a disciplinary proceeding is not a criminal trial and that the standard of proof required was that of preponderance of  probability  and not a proof beyond a reasonable doubt. Similar view was again held by the Supreme Court in High Court of Judicature at Bombay, through its Registrar v. Udai Singh, AIR 1997 SC 2286.

The Supreme Court, however, in the Union of India v. H.C.Goyal, AIR 1964  SC 364, held that a mere suspicion  should not be allowed to take the place of proof in a domestic enquiry and in the State of Assam v. Mohand Chandra Kanta, AIR 1972 SC 2535 held  that the charge against  a delinquent  could not be sustained on a mere conjectures in the absence of evidence. In Bank of India  and

another v. Degala Surya Narayana, AIR 1999 SC 2407 the Supreme Court  held

                                           5.

"Mere conjectures or surmises cannot sustain the finding of

guilt even in departmental enquiry proceedings. The Court exercising the jurisdiction of judicial review would not interfere with the findings of fact arrived at in the departmental enquiry proceedings except in a case of malafides or perversity i.e., where there is no evidence to support a finding or where a finding is such that no man acting reasonably and with objectively could have arrived at that finding."

There is another aspect. It is for the competent authority to impose the quantum of punishment. The Courts, normally does not interfere in the same unless the punishment was grossly disproportionate to the misconduct.

In Om Kumar and others Vs. Union of India, 2001[2] SCC 386, the Supreme Court held--

" We agree that the question of the quantum of punishment in disciplinary matters is primarily for the disciplinary authority and the jurisdiction of the High Courts under Article 226 of the Constitution or of the Administrative Tribunals is limited and is confined to the applicability  of one or other of the well known principles known as Wednesbury principles."

Lord Greene in Associated Provincial Picture Houses Vs. Wednesbury Corporation [1947] 2 All  ER 680, held that when a Statute gives a discretion to an authority to take a decision, the scope of Judicial review would be limited and that interference was permissible only when certain conditions were satisfied, namely, that the order was contrary to law, or that the relevant factors were not considered, or that irrelevant factors were considered or that the decision taken was such which no reasonable person could have taken. These principles are consistently being followed by the Courts in India.

The Supreme Court in Union of India Vs. G. Ganayutham, 1997[7] SCC 463, held

" Therefore, to arrive at a decision on " reasonableness" the court has to find out if the administrator has left out relevant factors or taken into account irrelevant factors. The decision of the administrator must have been within the four corners of the law, and not one which no sensible person could have reasonably arrived at, having regard to

the above principles, and must have been a bona fide one. The decision could be one of many choices open to the authority but it was for that authority to decide upon the choice and not for the Court to substitute its view."

                                               

                                            6.

In B.C. Chaturvedi  Vs. Union of India and others, [1995] 6

                                             

SCC 749,  the Supreme Court held-

                                               

" The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co extensive power to re-appreciate 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.

A review of the above legal position would establish that the disciplinary authority, and on appeal the appellate authority, being fact finding authorities have exclusive power to consider the evidence with a view to maintain discipline. They are invested with the discretion to impose appropriate punishment keeping in view the magnitude or gravity of the misconduct. The High Court/Tribunal, while exercising the power of judicial review, cannot normally substitute its own conclusion on penalty and impose some other penalty. If the punishment imposed by the disciplinary authority or the appellate authority shocks the conscience of the High court/Tribunal, it would appropriately mould the relief, either directing the disciplinary/appellate authority to re-consider the penalty imposed, or to shorten the litigation, it may itself, in exceptional and rare cases, impose appropriate punishment with cogent reasons in  support thereof."

In Ranjit Thakur Vs. Union of India, 1987[4] SCC 611, the Supreme Court held--

"Judicial review generally speaking, is not directed against a decision, but is directed against the "decision-making process". The question of the choice and quantum of punishment is within the jurisdiction and discretion of the Court-martial. But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias."

In Bhagat Ram Vs. State of Himachal Pradesh , AIR 1983, SC 454, the Supreme Court held--

"It is equally true that the penalty imposed must  commensurate with the gravity of the misconduct, and that any penalty disproportionate to the gravity of the misconduct would be violative of Article 14 of the Constitution."

In M/s Hind Construction & Engineering Co. Ltd. Vs. Their Workmen, AIR 1965 SC 917, the Supreme Court held--

                                               

"The Tribunal is not required to consider the propriety or adequacy of the punishment or whether it is excessive or too severe. But where the punishment is shockingly disproportionate, regard being had to the particular conduct and the past record or is such, as

                                           7.

no reasonable employer would ever impose in like circumstances, theTribunal may treat the imposition of such punishment as itself showing victimization or unfair labour practice."

                                                                 

In view of the aforesaid, it is clear that it is not necessary for the disciplinary authority or the appellate authority to hold that a particular charge has been conclusively proved or not. The standard of proof is that preponderance of probability and not a proof beyond a reasonable doubt. The degree of proof required in a criminal charge is vastly different than that required in a departmental inquiry. It is also clear that the scope of judicial review is limited and that interference is permissible only when the impugned order is contrary to law or that the relevant factors were not considered or that the decision taken was such which no reasonable person could have taken. Normally, the Court does not interfere, unless the punishment awarded was grossly disproportionate to the misconduct.

In the present case, I find that that disciplinary authority had awarded the penalty of dismissal after finding the charges no.1 and 2 were proved against the petitioner. The appellate authority also found that the charge no.1 stood partially proved, but exercised its discretion and reduced the penalty of dismissal to that of the reduction in the pay-scale and treating the period from the date of dismissal to the date of the appellate order as "Dies non". In my opinion, the appellate  authority fell in error in holding that the charges were partially proved. Infact, the charges stood fully proved. The standard of proof in a domestic proceeding is vastly different than that required in a criminal proceeding. Therefore, the appellate authority having found that the petitioner was involved and that he had committed a theft is indicative of the fact that the charge against the petitioner stood proved. Even if there was a doubt in the mind of the appellate authority, the requirement of the standard of proof being that of "preponderance of probability" was sufficient to prove the charge. A charge of theft is a serious matter and though, the punishment of

dismissal ought to have been given, nonetheless, since the appellate authority had dwelt upon the matter at length and contemplated the matter, the discretion exercised by him does not require any

                                              8.

interference. The question of  quantum of  punishment  is within the jurisdiction of the disciplinary and appellate authority. The punishment imposed by the appellate authority is neither harsh nor                                            

does it shocks the conscience of the Court. The penalty awarded commensurate with the gravity of the misconduct. The punishment

awarded by the appellate authority does not suffer from any error. Consequently, I do not find any error in the impugned order. The writ petition fails and is dismissed. In the circumstances of the case, there shall be no order as to cost.

Dt. September 8,2005

Ak/


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