1 W.P. (S) No. 5352 of 2005 [In the matter of an application under [SECTION] of the [ACT]] [ENTITY] Petitioner Versus 1. The [ENTITY] 2. The Hon'ble Jharkhand High Court, Ranchi 3. The [ENTITY] 4. The [ENTITY] Respondents For the Petitioner : M/s [ENTITY], [ENTITY], [ENTITY], Advocates For the Respondent : Mr. [ENTITY], AAG High Court PRESENT HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR By Court: Challenge to order dated 02.05.2005 dismissing the
petitioner from service and order dated 17.08.2005 whereby the appeal of the petitioner has been rejected, is primarily founded on two grounds, namely;
(I) while imposing the punishment of dismissal from service, the disciplinary authority has taken into consideration the alleged past misconduct of the petitioner which was never brought to the notice of the petitioner, and
(ii) the appellate order is a non speaking order and therefore, the impugned orders are liable to be quashed.
2. The brief facts of the case are that, the petitioner was initially appointed on 04.09.1989 on a class-IV post in the Koderma Judgeship and he was promoted to the post of temporary clerk on 22.02.1993. On 19.07.2004, a show- cause notice was issued to the petitioner to which he replied on 20.07.2004. A disciplinary proceeding was initiated against the petitioner by issuing a charge-memo dated 31.07.2004 in which a charge was framed against the petitioner on the allegation that he demanded Rs. 25,000/- from one [ENTITY] for procuring a favourable order to the plaintiff namely, [ENTITY] who is wife of [ENTITY]. During the enquiry 3 persons were examined by the prosecution. The complainant namely, [ENTITY] was examined, however, he denied to have made any complaint against the petitioner and therefore, he was declared hostile. The complainant was called on two more occasions and re-examined by the enquiry officer however, on both the occasions, he turned hostile and refused to own the complaint against the petitioner. However, he admitted his signature on the complaint. The wife of the complainant was examined as P.W.2 and she has admitted that her husband had given Rs. 25,000/- to the 'peshkar'. Another witness was examined who had notorised the affidavit which formed the basis of complaint. An enquiry report was submitted on 15.03.2005 holding the charge against the petitioner found proved. The petitioner was issued a second show-cause notice on 18.03.2005. The order of dismissal from service was passed by the District and Sessions Judge, Hazaribagh on 02.05.2005. The petitioner preferred an appeal against the order of dismissal dated 02.05.2005 which was dismissed and a communication in this regard was made by letter dated 12.08.2005 which was communicated to the petitioner by memo dated 17.08.2005. Aggrieved, the petitioner has approached this Court by filing the present writ petition.
3. A counter-affidavit has been filed by respondent nos. 2 and 3 in which it has been stated that the petitioner was afforded all reasonable opportunity to defend himself and the enquiry was conducted by following the principles of natural justice. The charge against the petitioner was grave and on the basis of the materials on record, the enquiry officer found the charge proved which has been accepted by the disciplinary as well as the appellate authority. A counter-affidavit has been filed by the respondent no. 4 also reiterating the stand taken by the respondent nos. 2 and 3.
4. Heard learned counsel appearing for the parties and perused the documents on record.
5. Mr. [ENTITY], learned counsel appearing for the petitioner has raised the contention that the enquiry officer has concluded the charge proved against the petitioner only on the basis of suspicion and there is no evidence on record to prove the charge levelled against the petitioner. Since the complainant turned hostile, although he was examined and re-examined atleast on three occasions, this should be considered fatal to the case against the petitioner. He has further submitted that since the allegation against the petitioner is of taking bribe, the test which should have been applied by the departmental authorities, would be the test which is applied in criminal cases and by mere preponderance of probability, it cannot be concluded that the charge against the petitioner was found proved. He has further submitted that the appellate order whereby, the appeal of the petitioner has been rejected is a non-speaking order and since the order of dismissal from service would ensue serious consequences, the appellate authority was required to apply his mind to the materials on record and the order must disclose the reason how he has reached at the conclusion that the penalty order does not require interference.
6. Per contra, Mr. [ENTITY] (AAG) opposing the claim of the petitioner, has submitted that once a finding of fact has been arrived at in a disciplinary proceeding, this Court can not sit in appeal over the findings recorded during the departmental proceeding. He has further submitted that since the allegation against the petitioner was grave, the order of dismissal from service is the most appropriate punishment which could have been awarded to the petitioner. Mr. [ENTITY] (AAG) reminded the Court of its limitations while exercising power under [SECTION] of the [ACT] and relied on the judgments delivered by the Hon'ble Supreme Court reported in :
(I) (1986) 2 SCC 651,
(ii) [PRECEDENT],
(iii) [PRECEDENT],
(iv) [PRECEDENT],
(v) [PRECEDENT],
(vi) [PRECEDENT], and
(vii) [PRECEDENT]
7. Replying to the contention raised by the respondents, Mr. [ENTITY], learned counsel appearing for the petitioner has submitted that the specific statement made by the petitioner in the Writ Petition has not been denied or controverted by the respondents and therefore, it should be taken as true and admitted. He has drawn attention of the Court to the pleadings in paragraph nos. 8, 9 and 29 of the Writ Petition to which either no reply has been given or those have been admitted by the respondents in the counter-affidavit. He further submits that the alleged past misconduct of the petitioner has been taken as a ground by the disciplinary authority while imposing punishment of dismissal from service, which could not have been done as the alleged past misconduct was not brought to the notice of the petitioner. He has relied on the decisions rendered by the Hon'ble Supreme Court in;
[CASE NUMBER] and [CASE NUMBER]
8. As against the above, Mr. [ENTITY] (AAG), learned counsel appearing for the respondents relied on the decision rendered by the Hon'ble Supreme Court reported in [PRECEDENT] and contended that it was always open to the departmental authority to consider the past misconduct for adding the 'weight' if the facts of the case so require.
9. Adverting to the contention raised on behalf of the petitioner that only on suspicion the charge against the petitioner has been held proved and since the complainant himself turned hostile, the case against the petitioner must fail, I find that the enquiry officer has relied upon the evidence of the witness no. 2 who is the wife of the complainant and has held that in view of the solitary evidence of the witness no.2 and the circumstances in the case, the charge against the petitioner is proved. I find that the specific charge against the petitioner was of demanding bribe of Rs. 25,000/- and taking bribe of Rs. 10,000/- whereas, the witness no. 2 in her statement has categorically stated that her husband (complainant) gave Rs. 25,000/- to the 'peshkar'. She has not named the petitioner to whom money was given in her presence. Further, I find that a notorised complaint against the petitioner was given however, there is no indication nor any effort was made to ascertain the reason for submitting a notorised complaint against the petitioner. The petitioner took a specific plea that due to quarrel with the advocate, the complaint against him was made. The complainant has stated that the advocate took his signature on blank paper and he has not made any complaint against the petitioner. Further, the fact that the wife of the complainant has been made a witness in the case against the petitioner, is also a mystry. How the wife of the complainant could be produced as a prosecution witness, is not indicated. In the complaint filed against the petitioner, there is no reference of the wife of the complainant. The fact that the complainant turned hostile and a notorised complaint was made against the petitioner, create serious doubt on the veracity of the complaint against the petitioner. Further, the statement made by the wife of the complainant in paragraph no. 16 is contrary to the charge levelled against the petitioner. I find merit in the contention raised by the learned counsel appearing for the petitioner that, the charge of demanding bribe is required to be proved beyond reasonable doubt and merely because the wife of the complainant stated that the complainant gave Rs. 25,000/- to one 'peshkar', the charge against the petitioner cannot be held to be proved.
10. In "[PRECEDENT], the charge against the delinquent employee was of demanding 1% commission for making the payment of pay allowance however, it was found by the High Court that the knowledge of the witness who deposed against the delinquent employee was based on hearsay statement of some unknown persons. The Hon'ble Supreme Court has held as under,
20. "So far as Charge 6 i.e. asking for 1% commission for making the payment of pay allowances is concerned, the learned Single Judge has appreciated the evidence of all the witnesses examined in this regard and came to the conclusion that not a single person had deposed before the enquiry officer that the respondent employee had asked any person to pay 1% commission for making payment of their allowances. It was based on hearsay statements. All the witnesses stated that this could be the motive/reason for not making the payment.
21. Such a serious charge of corruption requires to be proved to the hilt as it brings civil and criminal consequences upon the employee concerned. He would be liable to be prosecuted and would also be liable to suffer severest penalty awardable in such cases. Therefore, such a grave charge of quasi-criminal nature was required to be proved beyond any shadow of doubt and to the hilt. It cannot be proved on mere probabilities."
11. In "[PRECEDENT], a case under the [ACT], the Hon'ble Supreme Court has held as under,
12. "The fact that the judgments of the courts below were rendered concurrently cannot dissuade us from interfering in a case like this where such findings and conviction have been recorded on mere conjectures and erratic evaluation of the evidence on record. Consistency for the mere sake of it is no virtue. It is an obligation of judicial conscience to correct errors, where the same are manifest. The judgments of the courts below suffer from serious infirmities and manifest errors on account of unwarranted inferences liberally drawn by the courts below against the appellant, overlooking the fundamental principle of presumption of innocence of an accused till the charge levelled and his guilt is established beyond all reasonable doubt. The courts below have failed to consider the adverse impact on the prosecution case from the evidence of P.W.2 and the withholding of the lady constable and [ENTITY], two material witnesses. The appellant cannot be, on the basis of available evidence, held to have tacitly accepted the illegal gratification as alleged. The materials on record in this case are not sufficient to bring home the guilt of the appellant."
12. Before dealing with the contention raised on behalf of the respondents, it is necessary to notice the law laid down by the Hon'ble Supreme Court with respect to power of the High Court exercising jurisdiction under [SECTION] of the [ACT] in matters of disciplinary enquiry. In "[PRECEDENT], the Hon'ble Supreme Court has held that the disciplinary authority or the appellate authority alone is the fact finding authority and the High Court has no power to interfere with a finding of fact arrived at in a disciplinary proceeding.
13. In "[PRECEDENT], the High Court found the charges as 1(a) and 1(e) proved although other charges were not proved, the Hon'ble Supreme Court held that the High Court had no power to direct the government of Orissa to reconsider the order of dismissal.
14. In "[PRECEDENT], the Hon'ble Supreme Court has held as under,
7. " The High court is not constituted in a proceeding under [SECTION] of the [ACT] a Court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under [SECTION] to review the evidence and to arrive at an independent finding on the evidence "
15. In "[PRECEDENT], the Hon'ble Supreme Court again reiterated the same view by holding that,
21. " The High Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion. The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article
226."
16. From the aforesaid discussion it is clear that the High Court is not constituted as a Court of Appeal and it has no power to appreciate the evidence taken in departmental enquiry. However, it is also equally correct that the High Court in its 'secondary role' if comes to a conclusion that the ultimate decision of the departmental authority is irrational or not based on evidence and is such that no reasonable person would have arrived at such conclusion, the High Court would be justified in interfering with the order of penalty. In "[PRECEDENT], the Hon'ble Supreme Court has observed that the evidence adduced on behalf of the management must have nexus with the charges. The enquiry officer cannot base his findings on mere hypothesis. Mere ipse dixit on his part cannot be a substitute of evidence.
17. Coming back to the facts of the case, the petitioner has challenged the communication dated 17.08.2005 contained in Annexure-9 on the ground that, it is a cryptic order and it does not disclose any application of mind by the appellate authority, I find that in the counter-affidavit filed on behalf of the respondent no.4 (District and Sessions Judge, Hazaribagh) it has not been controverted that the communication dated 17.08.2005 as contained in Annexure 9 is not the order passed by the appellate authority. Much has been debated over the actual import of Annexure 9. The learned counsel appearing for the petitioner has contended that this reflects the order passed by the appellate authority and if there is a separate order passed by the appellate authority, it has not been brought on record by the respondents whereas, the learned counsel appearing for the respondents has submitted that the communication dated 17.08.2005, as contained in Annexure 9 is a mere communication communicating the decision of the appellate authority to the disciplinary authority however, he is unable to state whether any order passed by the appellate authority exists. Without going into this aspect any further, I am of the view that if the penalty order dated 02.05.2005 is not sustainable, the appellate order would also go.
18. Now reverting to the order passed by the disciplinary authority, I find that while passing the order of dismissal from service the disciplinary authority, has recorded that in view of past misconduct of the petitioner and the charge proved in the enquiry, the order of dismissal has been passed. In paragraph nos. 8 and 9 of the writ petition, the petitioner has averred as under,
8. "That the petitioner worked to the satisfaction of all concerned and no complaint of any kind was ever made against him.
9. That during the long period of service of 25 years no departmental proceeding was ever initiated against the petitioner nor any first Information report was lodged against the petitioner."
19. Paragraph nos. 10 and 11 of the counter-affidavit filed on behalf of respondent no. 4, the District and Sessions Judge, Hazaribagh are extracted below.
10. "That the statements made in paragraph No. 7 and 8 of the Writ application under reply require no comment.
11. That the contents of paragraph No. 9 of the writ petition is denied to the extent that during the long period of service of 25 years no departmental proceeding was ever initiated against the petitioner. In fact, as stated earlier, the petitioner joined in the service on 6.9.89 and after 16 years of service in the year 2005, he was dismissed."
20. It can be thus seen that only the length of service of the petitioner, that is 16 years and not 25 years, has been disputed by respondent no. 4. It is settled law that the past misconduct of an employee can be taken into consideration for awarding appropriate punishment however, the employee must be put on notice and the incidents of past misconduct must be brought to the notice of the delinquent employee. In the present case the specific stand taken by the writ petitioner that no departmental proceeding was ever initiated against him, has not been controverted by the respondents and it is a matter of record that the alleged past misconduct of the petitioner was never brought to the notice of the petitioner. The reliance of the learned Additional Advocate General on the decision rendered by the Hon'ble Supreme Court "[PRECEDENT] is misplaced. In the said case also the Hon'ble Supreme Court has held as under,
34. "The courts below and the statutory authorities failed to appreciate that if the disciplinary authority wants to consider the past conduct of the employee in imposing a punishment, the delinquent is entitled to notice thereof and generally the charge-sheet should contain such an article or at least he should be informed of the same at the stage of the show-cause notice, before imposing the punishment.
35. This Court in [PRECEDENT] considered the earlier judgments of this Court in [PRECEDENT], [PRECEDENT] [PRECEDENT], [PRECEDENT], DG, [PRECEDENT], [PRECEDENT] and [PRECEDENT] and came to the conclusion that it is desirable that the delinquent employee be informed by the disciplinary authority that his past conduct could be taken into consideration while imposing the punishment. However, in case of misconduct of a grave nature, even in the absence of statutory rules, the authority may take into consideration the indisputable past conduct/service record of the delinquent for "aiding the weight to the decision of imposing the punishment if the fact of the case so required".
21. As noticed above, the charge against the petitioner was of demanding bribe and therefore, merely on the preponderance of probability or because the wife of the complainant stated during the departmental enquiry that the complainant paid Rs.25,000/- to the 'peshkar', the charge against the petitioner cannot be said to be proved.
22. In view of the aforesaid discussion, I am of a definite opinion that in view of the evidence on record and the fact that the penalty order dated 02.05.2005 has been passed taking into consideration the alleged past misconduct of the petitioner, the impugned orders dated 02.05.2005 and 17.08.2005 are liable to be interfered with and are hereby quashed.
23. The learned counsel appearing for the petitioner has, at this stage, submitted that since the petitioner worked for about 16 years, it would not be in the interest of justice to remand the matter back to the authorities for a fresh decision. He has relied upon the judgment of the Hon'ble Supreme Court rendered in "[PRECEDENT] wherein the Hon'ble Supreme Court converted the order of punishment of dismissal from service into an order of compulsory retirement on compassionate ground.
24. In "[PRECEDENT], the Hon'ble Supreme Court interfered with the order of dismissal from service and imposed the punishment of compulsory retirement observing as under,
15. "In the aforementioned situation, ordinarily, we would have asked the disciplinary authority to consider the matter afresh, but the occurrence had taken place in the year 1984. The appellants and the said [ENTITY] had worked only for a few years, one of them is dead. In the aforementioned situation, we are of the opinion that we would be justified to fix the quantum of punishment. We are of the opinion that in the facts and circumstances of this case and in particular having regard to the passage of time, punishment of compulsory retirement will meet the ends of justice. If otherwise eligible, the delinquents would be entitled to retiral benefits. The appeal is allowed to the aforementioned extent."
25. In "Surendra Prasad Shukla Vs. [ENTITY] & Ors.", reported in (2011) 8 SCC 536, it was found that the delinquent, a Head Constable in State Police, who had served for 34 years, was dismissed from service as a stolen car was recovered from the government quarter occupied by the delinquent employee. However, no charge of abetting or aiding the offence under [SECTION] [ACT], for which his son was charged, was framed against him, the Hon'ble Supreme Court held that the punishment of dismissal from service, which would deprive the employee of his pension also, was shockingly disproportionate to negligence proved against him. The Hon'ble Supreme Court partly allowed the appeal and modified the punishment of dismissal from service to compulsory retirement.
26. In "[PRECEDENT], a case in which the delinquent employee without verification, instructed his colleague to transfer a dormant account into operative category, at the request of an unknown person visiting the bank and claiming to be account holder, which turned out to be false, the Hon'ble Supreme Court had held as under,
11. "However having regard to the fact that the proven charge did not involve either misappropriation or fraudulent conduct and the other circumstances of the case, we are of the view that the punishment of dismissal should be substituted by compulsory retirement, which does not involve reinstatement.
12. We, accordingly, allow the appeal and set aside the judgment of the High Court. We uphold the finding of guilt recorded by the disciplinary authority, but modify the punishment from 'dismissal' to 'compulsory retirement'. There is therefore no question of grant of any back-wages."
27. Having appreciated the contention raised by the learned counsel for the petitioner requesting the Court to convert the 'order of dismissal' from service into 'compulsory retirement', I am of the opinion that in view of the long past service of the petitioner, the order of compulsory retirement may be the appropriate order however, I am of the view that this aspect of the matter should be left open for the authorities to decide and accordingly, the disciplinary authority is directed to take a decision with respect to quantum of punishment which can be imposed upon the petitioner.
28. The writ petition is disposed of with the aforesaid direction and observation.
([ENTITY], J.) Jharkhand High Court, Ranchi Dated 28.06.2013 Amit/N.A.F.R.