Gujarat High Court Case Information System Print SCA/1035520/2007 12/ 12 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10355 of 2007 [ENTITY] - Petitioner(s) Versus [ENTITY] THR' DIRECTOR GENERAL & 2 - Respondent(s) Appearance : MRS [ENTITY] for Petitioner(s) : 1,MR [ENTITY] for Petitioner(s) : 1, MR [ENTITY] for Respondent(s) : 1, NOTICE SERVED for Respondent(s) : 2 - 3. CORAM : HONOURABLE MR.JUSTICE [ENTITY] and HON'BLE SMT. JUSTICE [ENTITY] Date : 07/08/2008 ORAL ORDER
(Per : HON'BLE SMT. JUSTICE [ENTITY])
1. By filing this petition, the petitioner has prayed that the order dated 29-9-2005 passed by the Disciplinary Authority, order dated 13-2-2006 passed by the Appellate Authority and the order dated 31-5-2006 passed by the Revisional Authority whereby the penalty of compulsory retirement has been imposed upon him, be quashed and set aside.
2. The brief facts of the case, as emerging from a perusal of the averments made in the petition as well as the documents annexed thereto are, that the petitioner was appointed as a Constable/GD in the Central Industrial Security Force ( CISF for short), on 2-10-1989. While posted at 3rd Reserve Battalion,Bhilai he was found absent from the class of Quick Reaction Team , on 5-8-2004. It was also found that during class hours, the petitioner misbehaved with his senior officers for which a Memorandum of Charge dated 13-1-2005 under [SECTION] of the [ACT], was issued to him. The Memorandum of Charge contained 5 Articles of charge against the petitioner. A departmental inquiry ensued and the Inquiry Officer found that the charges levelled against the petitioner were proved. The Disciplinary Authority imposed the penalty of compulsory retirement upon the petitioner vide order dated 29-9-2005. Being aggrieved by the said order, the petitioner preferred an appeal on 10-10-2005. The Appellate Authority rejected the appeal of the petitioner and confirmed the order of compulsory retirement passed by the Disciplinary Authority, vide order dated 13-2-2006. The petitioner, thereafter filed a Revision Petition against the order of the Appellate Authority, which was rejected by the Revisional Authority by order dated 31-5-2006. Being aggrieved thereby, the petitioner has approached this court by filing the present petition.
3. Mr.[ENTITY], learned counsel for the petitioner, has submitted :
(a) That the Inquiry Officer has acted upon the statements of the authorities who had a preconceived bias against the petitioner for extraneous considerations and no independent witness has been examined in the departmental inquiry to prove the charges against the petitioner and in view of the above, a gross miscarriage of justice has occasioned.
(b) That the departmental authorities have not taken a humanitarian and compassionate approach as the petitioner had applied for leave in order to visit his ailing mother, who expired on 5-8-2004.
(c ) That even assuming, for the sake of argument, that the alleged incident of disobedience and insubordination took place on 5-8-2004, the report of the incident was made only on 28-12-2004 and the delay in bringing the incident on record speaks volumes about the biased attitude of the concerned authority towards the petitioner.
(d) That the relevant factors in favour of the petitioner have not been taken into consideration and the punishment of compulsory retirement imposed upon him is very harsh and disproportionate.
(e) That the charge of not accepting the transfer order and the movement order is not substantiated by any material on record and is also suggestive of the bias of the deposing witnesses towards the petitioner.
The learned counsel for the petitioner has placed reliance upon the case of [PRECEDENT] and has submitted that the Disciplinary Authority was bound to take into consideration the gravity of the charge,and the nature of its consequences and a balance should have been struck before determining a just penalty, which has not been done. He has relied upon the following extract of the above-quoted judgment:
Before imposing the economic death penalty of dismissal or removal from service a disciplinary authority is bound to apply his mind to the three vital considerations, namely, (1) as regards the nature and magnitude of the established charge, (2) as regards the desirability or otherwise of retaining the Government servant in service in the context of the charges found proved against him, and (3) as to whether a penalty lesser than the extreme penalty of dismissal or removal would prove adequate. Be it administration of criminal law or the exercise of disciplinary jurisdiction in departmental proceedings, punishment is not and cannot be the 'end' in itself. Punishment for the sake of punishment cannot be the motto. (Principles enunciated) (Paras 1 & 5) .
4. On the above grounds, the learned counsel for the petitioner has submitted that the impugned orders deserve to be quashed and set aside and the petition be allowed.
5. Per contra, Mr.[ENTITY],learned Central Government Counsel for the respondents has submitted that the departmental inquiry against the petitioner suffers from no procedural or legal defect and this Court, exercising jurisdiction under [SECTION] of the [ACT],cannot re-appreciate the evidence or sit in appeal over the decision of the authorities. It is submitted that the petitioner was given due opportunity to represent his case and the disciplinary authority, after going through the statements of different prosecution witnesses and documents produced by them as also the findings of the Inquiry Officer has awarded the penalty of compulsory retirement from service. It is emphasised by the learned counsel for the respondents that the CISF is a disciplined and combative Para-military Force where a high degree of discipline is the norm and, given the nature of duties of the members of such a Force, there is no scope for leniency in cases of indiscipline, absence, insubordination or misbehaviour of any kind. It is submitted that the members of the CISF take care of the top security of the important locations of the country and, therefore, the charges having been proved against the petitioner, after due inquiry, the penalty imposed is just and proper, and this court may not interfere with the same.
6. We have heard Mr.[ENTITY], learned counsel for the petitioner and Mr.[ENTITY],learned Central Government Counsel for the respondents at length and in great detail and have perused the averments made in the petition as well as the documents on record. The main ground of challenge advanced by the learned counsel for the petitioner is that the departmental authorities have not taken a humanitarian and compassionate approach towards the petitioner and that there has been no proper application of mind resulting in non-consideration of the relevant material on record. Another ground of challenge is the purportedly biased attitude of the departmental authorities against the petitioner. We find that these allegations are vague and general in nature and there is no specific material on record to substantiate them.
7. The contention that the report of the incident which took place on 5-8-2004 was made only on 28-12-2004 and, therefore, the delay is indicative of bias against the petitioner is merely stated to be rejected. In fact, if the memorandum of charges is perused, it reveals that the first two Articles of charge against the petitioner relate to 5-8-2004, the third and fourth Articles of charge relate to 22-11-2004 and the fifth Article of charge relates to 23-11-2004. We are not convinced by the argument of the learned counsel for the petitioner that this indicates an attitude of bias against the petitioner. The material on record does not reveal that there is non-application of mind, as the impugned orders are reasoned and self speaking. In our view, apart from general and sweeping averments, there is no substance in the allegations of bias against the petitioner.
It is not the case of the petitioner that the departmental inquiry suffers from any procedural defect or illegality. We find that the rules of natural justice have been followed and the petitioner has been given sufficient opportunity to represent his case at every stage and, on the basis of evidence on record, the penalty of compulsory retirement has been imposed upon the petitioner.
8. It is a settled position of law that the Court, exercising jurisdiction under [SECTION] of the [ACT], cannot sit as an Appellate Authority to review or re-appreciate the evidence of departmental proceedings. This is within the sole realm of the concerned authorities. In [ENTITY] v. Union of India, (1995) 6 SCC 749 the Supreme Court has held, as under:
Judicial review is not an appeal from a decision but a review of the manner in which the decision is made. Power of judicial review is meant to ensure that the individual receives fair treatment and not to ensure that the conclusion which the authority reaches is necessarily correct in the eye of the Court. When an inquiry is conducted on charges of misconduct by a public servant, the Court/Tribunal is concerned to determine whether the inquiry was held by a competent officer or whether rules of natural justice are complied with. Whether the findings or conclusions are based on some evidence, the authority entrusted with the power to hold inquiry has jurisdiction, power and authority to reach a finding of fact or conclusion. But that finding must be based on some evidence. Neither the technical rules of [ACT] nor of proof of fact or evidence as defined therein, apply to disciplinary proceeding. When the authority accepts that evidence and conclusion receives support therefrom, the disciplinary authority is entitled to hold that the delinquent officer is guilty of the charge. The Court/Tribunal in its power of judicial review does not act as appellate authority to reappreciate the evidence and to arrive at the own independent findings on the evidence. The Court/Tribunal may interfere where the authority held the proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of statutory rules prescribing the mode of inquiry or where the conclusion or finding reached by the disciplinary authority is based on no evidence. If the conclusion or finding be such as no reasonable person would have ever reached, the Court/Tribunal may interfere with the conclusion or the finding, and mould the relief so as to make it appropriate to the facts of each case.
13. The disciplinary authority is the sole judge of facts. Where appeal is presented, the appellate authority has co-extensive power to reappreciate 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. In [PRECEDENT] this Court held at p.728 that if the conclusion, upon consideration of the evidence, reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued.
9. Applying the above principles to the facts and circumstances of the case in hand, we do not find any procedural defect or illegality in the conduct of the inquiry. No ground has been made out to warrant interference by us.
10. So far as the quantum of punishment is concerned, the Supreme Court in [ENTITY] (Supra) has held as under:
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 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.
11. There are concurrent findings of fact of the departmental authorities against the petitioner, which are based upon evidence on record. In view of the limited scope of judicial review, we do not see any reason to interfere with the quantum of punishment imposed upon the petitioner as a result of duly conducted departmental proceedings.
12. In view of the above legal and factual position and in the ultimate analysis,we are of the considered view that the petition, being devoid of merit, must fail. It is, accordingly, dismissed. Notice is discharged. No orders as to costs.
([ENTITY],J) (Smt.[ENTITY],J) arg