the petitioner that despite making a request for supply of a copy of the
report of the preliminary inquiry, such report was not provided to the
petitioner. The law in this regard is also well settled.
In Vijay Kumar Nigam v. State of M.P. [AIR 1997 SC 1358], the
Supreme Court took the view that the preliminary report is only to
decide and assess whether it would be necessary to take any disciplinary
action against the delinquent officer and it does not form any foundation
for passing the order of dismissal against the employee.
In Krishna Chandra Tandon v. Union of India [AIR 1974 SC
1589], the Supreme Court held:
“It is very necessary for an authority which orders an enquiry to be
satisfied that there are prima facie ground for holding a disciplinary
enquiry and, therefore, before he makes up his mind he will either himself
investigate or direct his subordinate to investigate in the matter and it is
only after he receives the result of these investigations that he can decide
as to whether disciplinary action is called for or not. Therefore, the
documents of the nature of interdepartmental communications between
officers preliminary to the holding of enquiry have really no importance
unless the Enquiry Officer wants to rely on them for his conclusion.”
In Narayan Dattatraya Ramteerthakhar v. State of Maharastra
[AIR 1997 SC 2148], the Supreme Court held:
“The preliminary enquiry has nothing to do with the enquiry conducted
after the issue of the chargesheet. The former action would be to find
whether disciplinary enquiry should be initiated against the delinquent.
After fullfledged enquiry had lost its importance.”
A preliminary inquiry is conducted for the purpose of taking an
appropriate decision whether the case is one of a regular departmental
inquiry or not. Therefore, a delinquent as such is not entitled to ask, as a
matter of right, the copy of the preliminary inquiry report.
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 1619 of 2016
HADMATSINH NAHARSINH SISODIYA....Petitioner(s)
Versus
STATE OF GUJARAT & 3....Respondent(s)
CORAM: HONOURABLE MR.JUSTICE J.B.PARDIWALA
Date : 15/02/2016
1 By this writ application under Article 226 of the Constitution of
India, the petitioner, an unarmed Police Constable, has prayed for the
following reliefs:
(36) (A) Your Lordships may be pleased to issue a writ of mandamus
or a writ in the nature of mandamus or any other appropriate writ, order
or directions quashing and setting aside order dated 20.01.2013 passed by
respondent No.4 (at annexure AnnexureA hereto), order dated
02.12.2013 passed in the appeal by respondent No.3 (at annexure
AnnexureB hereto), order dated 21.02.2015 passed by respondent Ano.2
(at annexure AnnexureC hereto) as well as order dated 30.05.2015
passed by respondent No.1 (at annexure AnnexureD hereto) and further
be pleased to direct the respondent authorities to give all consequential
benefits to the petitioner;
(A1) Your Lordships may be pleased to quash and set aside report
of Inquiry Officer dated 12.07.2012 annexed at Annexure’K’ hereto at
pg.89.
(B) During the pendency and final disposal of the present petition Your
Lordships may be pleased to stay further operation, implementation and
execution of order dated 20.01.2013 passed by respondent no.4 (at
annexure AnnexureA hereto), order dated 02.12.2013 passed in the
appeal by respondent No.3 (at annexure AnnexureB hereto), order dated
21.02.105 passed by respondent No.2 (at annexure AnnexureC hereto) as
well as order dated 30.05.2015 passed by respondent No.1 (at annexure
AnnexureD hereto);
(C) Pass any such other and/or further orders that may be thought just
and proper, in the facts and circumstances of the present case;”
2 The facts of this case may be summarized as under:
2.1 The petitioner was appointed as an ‘unarmed Police Constable’
vide order dated 22nd October, 1992. The State of Gujarat, in the year
2008, witnessed one of the worst hooch tragedies. Almost more than
hundred people died on account of the consumption of spurious liquor.
After a preliminary inquiry, it was found that many Police Constables
like the petitioner had relations with the noted bootleggers of the city. A
preliminary inquiry further revealed that the petitioner herein was in
constant touch with the noted bootleggers of the city. He used to talk
with them on mobile phones. The details could be found in the charges
levelled against the petitioner. It appears that the petitioner was issued a
sim card with the mobile number : 9879099988. The evidence led
during the course of the departmental inquiry revealed that he had
called up one bootlegger, namely, Ravindra on his mobile number :
9377287377. In the same manner, the petitioner had a talk for about ten
times with another bootlegger, namely, Madanlal Asrani. In the same
way, he had also a talk for two times with a bootlegger, namely, Brijesh
Tiwari on his mobile.
3 Thus, it appears that directly or indirectly, the petitioner being an
unarmed Police Constable, was in constant touch and had maintained
relations with the noted bootleggers of the city against whom there are
number of cases registered under the Bombay Prohibition Act.
4 A departmental chargesheet was served upon the petitioner. A full
fledged inquiry was conducted, and at the end of the inquiry, the Inquiry
Officer held that the charges were established. The Superintendent of
Police, being the disciplinary authority, passed an order dated 20th
January, 2013 imposing a penalty of placing the petitioner in the lowest
of the pay scale.
5 The petitioner, being dissatisfied with such punishment, preferred
an appeal before the Inspector General of Police, Rajkot Division. The
Inspector General of Police, being the appellate authority, vide order
dated 2nd November, 2013 dismissed the appeal and affirmed the order
passed by the Superintendent of Police.
6 The petitioner, being dissatisfied with the order passed by the
appellate authority, preferred a Revision Application before the Director
General of Police and the Revision was also ordered to be rejected vide
order dated 21st February, 2015. Against the concurrent findings of three
authorities, the petitioner has come up with this writ application.
7 The position of law is well settled.
8 In Lalit Popli v. Canara Bank, [(2006) 2 SCC 255, para 1619]
while considering the nature of proof required in a departmental enquiry
on the scope of judicial review of the High Court under Article 226, the
Supreme Court held as follows:
16. It is fairly well settled that the approach and objective in criminal
proceedings and the disciplinary proceedings are altogether distinct and
different. In the disciplinary proceedings the preliminary question is
whether the employee is guilty of such conduct as would merit action
against him, whereas in criminal proceedings the question is whether the
offences registered against him are established and if established what
sentence should be imposed upon him. The standard of proof, the mode of
enquiry and the rules governing the enquiry and trial are conceptually
different. (see State of Rajasthan v. B.K. Meena). In case of disciplinary
enquiry the technical rules of evidence have no application. The doctrine
of proof beyond doubt has no application. Preponderance of probabilities
and some material on record are necessary to arrive at the conclusion
whether or not the delinquent has committed misconduct.
17. While exercising jurisdiction under Article 226 of the Constitution the
High Court does not act as an Appellate Authority. Its jurisdiction is
circumscribed by limits of judicial review to correct errors of law or
procedural errors leading to manifest injustice or violation of principles of
natural justice. Judicial review is not akin to adjudication of the case on
merits as an Appellate Authority.
18. In B.C. Chaturvedi v. Union of India the scope of judicial review was
indicated by stating that review by the court is of decisionmaking process
and where the findings of the disciplinary authority are based on some
evidence, the court or the tribunal cannot reappreciate the evidence and
substitute its own finding.
19. As observed in R.S. Saini v. State of Punjab in paras 16 and 17 the
scope of interference is rather limited and has to be exercised within the
circumscribed limits.
(2) In B.C. Chaturvedi v. Union of India, it was observed at SCC 762,
para 18 as under:
18. A review of the above legal position would establish that the
disciplinary authority, and on appeal the Appellate Authority, being factfinding
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 reconsider 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.
(3) In Ajit Kumar Nag v. G.M. (PJ), Indian Oil Corpn. Ltd. (threeJudge
Bench), Thakker, J. speaking for the Bench held as under: (SCC 776,
para 11)
11. As far as acquittal of the appellant by a criminal court is concerned,
in our opinion, the said order does not preclude the Corporation from
taking an action if it is otherwise permissible. In our judgment, the law is
fairly well settled. Acquittal by a criminal court would not debar an
employer from exercising power in accordance with the Rules and
Regulations in force. The two proceedings, criminal and departmental, are
entirely different. They operate in different fields and have different
objectives. Whereas the object of the criminal trial is to inflict appropriate
punishment on the offender, the purpose of enquiry proceedings is to deal
with the delinquent departmentally and to impose penalty in accordance
with the service rules. In a criminal trial, incriminating statement made
by the accused in certain circumstances or before certain officers is totally
inadmissble in evidence. Such strict rules of evidence and procedure would
not apply to departmental proceedings. The degree of proof which is
necessary to order a conviction is different from the degree of proof
necessary to record the commission of delinquency. The rule relating to
appreciation of evidence in the two proceedings is also not similar. In
criminal law, burden of proof is on the prosecution and unless the
prosecution is able to prove the guilt of the accused beyond reasonable
doubt, he cannot be convicted by a court of law. In a departmental
enquiry, on the other hand, penalty can be imposed on the delinquent
officer on a finding recorded on the basis of preponderance of probability.
Acquittal of the appellant by a judicial Magistrate, therefore, does not ipso
facto absolve him from the liability under the disciplinary jurisdiction of
the Corporation, we are, therefore, unable to uphold the contention of the
appellant that since he was acquitted by a criminal court, the impugned
order dismissing him from service deserves to be quashed and set aside.
9 In the State of Bikaner and Jaipur, [(2011) 4 SCC 584] the
Supreme Court made the following observations in paragraph No.7:
7. It is now well settled that the courts will not act as an appellate court
and reassess the evidence led in the domestic enquiry, nor interfere on the
ground that another view is possible on the material on record. If the
enquiry has been fairly and properly held and the findings are based on
evidence, the question of adequacy of the evidence or the reliable nature of
the evidence will not be grounds for interfering with the findings in
departmental enquiries. Therefore, courts will not interfere with findings
of fact recorded in departmental enquiries, except where such findings are
based on no evidence or where they are clearly perverse. The test to find
out perversity is to see whether a tribunal acting reasonably could have
arrived at such conclusion or findings, on the material on record. The
courts will however interfere with the findings in disciplinary matters, if
principles of natural justice or statutory regulations have been violated or
if the order is found to be arbitrary, capricious, mala fide or based on
extraneous considerations. (Vide B.C. Chaturvedi v. Union of India, Union
of India v. G.Ganayutham, Bank of India v. Degala Suryanarayana and
High Court of Judicature at Bombay. V. Shashikant S. Patil.)
10 I am not impressed by the submission canvassed on behalf of the
petitioner that identically situated unarmed Head Constable against
whom the same allegations were levelled have been exonerated. I may
not go into this issue because the other unarmed Police Constables must
have been proceeded independently, and this Court has no idea what
evidence was led in those inquiries.
11 I am also not impressed by the submission canvassed on behalf of
the petitioner that despite making a request for supply of a copy of the
report of the preliminary inquiry, such report was not provided to the
petitioner. The law in this regard is also well settled.
12 In Vijay Kumar Nigam v. State of M.P. [AIR 1997 SC 1358], the
Supreme Court took the view that the preliminary report is only to
decide and assess whether it would be necessary to take any disciplinary
action against the delinquent officer and it does not form any foundation
for passing the order of dismissal against the employee.
13 In Krishna Chandra Tandon v. Union of India [AIR 1974 SC
1589], the Supreme Court held:
“It is very necessary for an authority which orders an enquiry to be
satisfied that there are prima facie ground for holding a disciplinary
enquiry and, therefore, before he makes up his mind he will either himself
investigate or direct his subordinate to investigate in the matter and it is
only after he receives the result of these investigations that he can decide
as to whether disciplinary action is called for or not. Therefore, the
documents of the nature of interdepartmental communications between
officers preliminary to the holding of enquiry have really no importance
unless the Enquiry Officer wants to rely on them for his conclusion.”
14 In Narayan Dattatraya Ramteerthakhar v. State of Maharastra
[AIR 1997 SC 2148], the Supreme Court held:
“The preliminary enquiry has nothing to do with the enquiry conducted
after the issue of the chargesheet. The former action would be to find
whether disciplinary enquiry should be initiated against the delinquent.
After fullfledged enquiry had lost its importance.”
15 A preliminary inquiry is conducted for the purpose of taking an
appropriate decision whether the case is one of a regular departmental
inquiry or not. Therefore, a delinquent as such is not entitled to ask, as a
matter of right, the copy of the preliminary inquiry report.
16 In the overall view of the matter, I see no good reason to disturb
the concurrent findings of the three authorities.
17 In the result, this application fails and is hereby rejected.
(J.B.PARDIWALA, J.)
No comments:
Post a Comment