[CASE NUMBER] 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH [CASE NUMBER] DATE OF DECISION: FEBRUARY 27, 2013 [ENTITY] Petitioner Versus [ENTITY] & others Respondents CORAM:- HON'BLE MR.JUSTICE [ENTITY] Present: Mr.[ENTITY], Advocate and Mr.[ENTITY], Advocate for the petitioner. Mr.[ENTITY], Senior Deputy Advocate General, Haryana. <><><> [ENTITY], J.
Challenge in the instant writ petition is to the order dated 27.2.2010, Annexure P14, passed by the Deputy Commissioner of Police, Headquarters, Gurgaon whereby a penalty of stoppage of two future increments with permanent effect has been imposed upon the petitioner. Furthermore, challenge is also to the order dated 3.7.2010 passed by the Commissioner of Police, Gurgaon dismissing the statutory appeal filed by the petitioner against the order of penalty.
2. Facts leading to the filing of the present writ petition, in brief, are that the petitioner was initially appointed as a Constable with the Haryana Police in the year 1981. He thereafter earned promotions as Head Constable in the year 1999 and then as Assistant Sub Inspector of Police in 2006. In the year 2009, the petitioner was posted as ASI at Police Station Bhondsi, Gurgaon. Private respondent No.5 - Ms.[ENTITY], Sub Inspector was at that point of time posted as SHO of the concerned Police Station. Vide order, dated 2.5.2009, passed by the Deputy Commissioner of Police, Headquarters, Gurgaon, Annexure P8, a regular departmental enquiry was ordered against the petitioner. A perusal of such order would make it apparent that the departmental enquiry stood initiated against the petitioner on the report of SHO, Police Station Bhondsi, Gurgaon i.e. respondent No.5. The petitioner, accordingly, was served with the summary of charges which were regarding not taking interest in the work of investigation, not conducting proper proceedings on a complaint bearing No.95-SP dated 23.4.2009 and letting off suspected persons handed over by Gram Panchayat Dhamjod without verification and in this regard taking illegal gratification of `25,000/- from one Smt.[ENTITY] wife of [ENTITY], resident of village Dhamjod.
3. The petitioner submitted a reply to the charge sheet and thereafter, the Enquiry Officer i.e. Assistant Commissioner of Police, Sadar East, Gurgaon submitted an enquiry report dated 27.1.2010 holding the petitioner guilty of the charges levelled against him. Agreeing with the findings of the Enquiry Officer, the Punishing Authority served upon the petitioner a show cause notice dated 2.2.2010 contemplating the imposition of a penalty of stoppage of five future increments with permanent effect. The petitioner submitted a detailed reply, dated 19.2.2010, to the show cause notice, Annexure P13. The Punishing Authority thereafter having afforded an opportunity of personal hearing to the petitioner passed the impugned order dated 27.2.2010 imposing the punishment of stoppage of two future increments with permanent effect. The petitioner preferred an appeal dated 9.3.2010, which stands rejected in terms of impugned order dated 3.7.2010, Annexure P16, passed by the Appellate Authority.
4. Learned counsel appearing for the petitioner has vehemently argued that the findings recorded by the Enquiry Officer cannot be sustained as the enquiry has been held in violation of the principles of natural justice. It has also been contended that there was no evidence led against the petitioner to sustain the charges levelled against him and as such, the findings of the Enquiry Officer are totally perverse as no reasonable person could have arrived at such findings on the basis of the evidence brought on record. Learned counsel would argue that there has to be existence of some cogent evidence which would link the petitioner with the charge levelled against him and it is only thereupon that the petitioner could have been held guilty. It has been contended that the petitioner has been held guilty merely upon the deposition of one witness i.e. Respondent No.5 who was clearly biased against the petitioner and at whose instance, the departmental enquiry had been initiated. Specific and categoric assertions of malafides raised against respondent No.5 who has been impleaded by name in the array of respondents were also adverted to by the learned counsel. It has also been argued that complainant Smt.[ENTITY] from whom it was alleged that the petitioner had taken `25,000/- was not even examined during the enquiry proceedings. In a nut- shell, the case set up on behalf of the petitioner is that it was a case of no evidence against the petitioner and the entire proceedings of conducting of an enquiry, findings having been recorded against him, issuance of a show cause notice and grant of personal hearing were a mere eye-wash. Learned counsel has argued that the order of punishment at the hands of the Disciplinary Authority cannot be sustained on the basis of such enquiry proceedings which clearly stood vitiated.
5. Per contra, Mr.[ENTITY], Senior Deputy Advocate General, Haryana would contend that the impugned order dated 27.2.2010, Annexure P14, passed by the Deputy Commissioner of Police, Headquarters, Gurgaon imposing penalty of stoppage of two future increments with permanent effect upon the petitioner and duly affirmed by the Appellate Authority, has been passed as a result of the culmination of a regular departmental enquiry in which the requisite procedure had been followed. Learned State counsel would contend that the petitioner had been granted a fair opportunity at each and every stage of the regular enquiry and as such, there has been compliance of the principles of natural justice. That apart, learned State counsel would also submit that this Court in exercise of its extra-ordinary writ jurisdiction under [SECTION] of the [ACT] would not function as a Court of appeal and there would be no occasion to re-appraise and re-appreciate the evidence.
6. Learned counsel for the parties have been heard at length and the pleadings on record have been perused in detail.
7. It is by now well settled that Courts will not act as an Appellate Court and re-assess the evidence led in a departmental enquiry, nor interfere on the ground that another view is possible on the material on record. If the departmental enquiry has been fairly and properly held and the findings are based on evidence, the question of adequacy of evidence or the reliable nature of the evidence led would not be grounds for interfering with the findings recorded in such enquiry. As such, Courts will not interfere with the findings of fact recorded in a departmental enquiry except when such findings are based on no evidence or where such findings 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 basis of 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, biased, malafide or based on extraneous consideration. The Hon'ble Supreme Court in [PRECEDENT] had observed in the following terms:
"It is no doubt true that the High Court under [SECTION] or this Court under [SECTION] would not interfere with the findings recorded at the departmental enquiry by the disciplinary authority or the Enquiry Officer as a matter of course. The Court cannot sit in appeal over those findings and assume the role of the Appellate Authority. But this does not mean that in no circumstance can the Court interfere. The power of judicial review available to the High Court as also to this Court under the [ACT] takes in its stride the domestic enquiry as well and it can interfere with the conclusions reached therein if there was no evidence to support the findings or the findings recorded were such as could not have been reached by an ordinary prudent man or the findings were perverse or made at the dictates of the superior authority."
8. Such view was re-iterated by the Apex Court in [PRECEDENT] and it was held as follows:
"While it is true that in a departmental proceeding, the disciplinary authority is the sole judge of facts and the High Court may not interfere with the factual findings but the availability of judicial review even in the case of departmental proceeding cannot be doubted. Judicial review of administrative action is feasible and same has its application to its fullest extent in even departmental proceedings where it is found that the recorded findings are based on no evidence or the findings are totally perverse or legally untenable. The adequacy or inadequacy of evidence is not permitted but in the event of there being a finding which otherwise shocks the judicial conscience of the court, it is a well-neigh impossibility to decry availability of judicial review at the instance of an affected person"
9. It is in the light of such settled principles that the present case requires scrutiny.
10. The precise charges levelled against the petitioner were in the following terms:
"I, [ENTITY], HPS Assistant Commissioner of Police, Sadar Gurgaon do hereby charge you [ENTITY] No.92/Gurgaon that whom during the month of April 2009, you were posted as investigating officer, in the police station, Bhondsi, you did not take interest in the investigation process and on 23.4.09, you did not take the proper action on an application No.95-5P dated 23.4.2009 and at your own you released the suspected persons handed over by the villagers of Gram Panchayat Ghamroj without conducting enquiry after taking the bribe of `25,000/- from Smt.[ENTITY] wife of [ENTITY] [ENTITY] resident of Ghamroj and thereby you were indulged in corruption and also diminished the reputation of the police and also committed lack in discharge of your duties. This act on your part is a gross departmental misconduct."
11. Towards proving such charges, five prosecution witnesses were examined during the course of departmental enquiry. A perusal of the complete enquiry report which is on record as Annexure P11 would reveal that witness No.1 - [ENTITY], witness No.2 - SI [ENTITY], witness No.3 - ASI [ENTITY] and witness No.4 - [ENTITY] were only formal witnesses. The aforementioned witnesses produced and proved the service record of the petitioner as regards his date of initial appointment in service, date of transfer, entries in his ACRs etc. None of these witnesses deposed in relation to the allegations/charges framed against the petitioner. Even though, Smt.[ENTITY] wife of Shri [ENTITY] in relation to whom the specific allegation had been raised against the petitioner for having accepted `25,000/- for letting off two suspected persons handed over by the Gram Panchayat, had been cited as prosecution witness No.6, but she was not even examined during the course of the enquiry proceedings on the ground that she was not found to be living at the given address. It is only the statement suffered by prosecution witness No.5 i.e. Ms.[ENTITY] (respondent No.5 herein) and her cross-examination which has been relied upon by the Enquiry Officer to hold the petitioner guilty. Even a perusal of the entire statement of respondent No.5 as also her cross-examination which forms a part of the enquiry report on record would reveal that such private respondent has not made any categoric assertion as regards the petitioner having accepted `25,000/- towards illegal gratification. Still further, even though vide order dated 2.5.2009, Annexure P8, a regular departmental enquiry was ordered against the petitioner on the report of respondent No.5 alleging that the petitioner is not taking interest in the investigation process and has not been obeying the instructions and orders issued by the SHO, still in her deposition in the capacity of prosecution witness No.5, respondent No.5-SHO, Police Station Bhondsi has not referred to any specific orders that had been dis-obeyed by the petitioner. She has repeatedly referred to certain oral instructions in this regard.
12. On the other hand, the petitioner had produced his statement in defence before the Enquiry Officer and had even led two defence witnesses i.e. [ENTITY], [ENTITY] as also [ENTITY] son of [ENTITY]. Defence witness No.2-[ENTITY] admitted that [ENTITY] was his real sister. Both the defence witnesses deposed in clear terms that no money was taken by the petitioner and the concerned persons had been let off by the petitioner on the asking of the Gram Panchayat, Dhamjod who had convened a meeting in this regard.
13. The findings of the Enquiry Officer holding the petitioner to be guilty of the charges are in the following terms:
"Thereafter I thoroughly gone through the evidence of the department witnesses, defence witnesses and written statement. I am not satisfied with the points raised by the delinquent in his
statement in defence because the delinquent can get recorded the statement in his favour by offering the greed and from the statement of departmental witness No.5 and the cross rendered to departmental witness No.5, by the delinquent, the charges levelled against the ASI [ENTITY] No.92/Gurgaon are proved.
During the enquiry of the departmental evidence, witnesses in defence and the written statement of delinquent and secret enquiry at my own I reached to the conclusion that the charges levelled against ASI [ENTITY] are correct and thus they are proved against the delinquent."
14. It was obligatory upon the Enquiry Officer to have weighed the evidence led on behalf of the prosecution as also the defence with an open mind. In the facts of the present case, there is virtually no evidence that could have led to the findings of guilt against the petitioner. Such view is being taken as during the course of the enquiry proceedings, no witness was examined on behalf of the respondents to prove and establish by tendering any direct or cogent evidence that the amount of `25,000/- was received by the petitioner by way of illegal gratification from Smt.[ENTITY]. The aforementioned complainant Smt.[ENTITY] was not even examined during the course of the enquiry proceedings. The testimony of the defence witnesses has been brushed aside by the Enquiry Officer by merely stating that the petitioner/delinquent could have got recorded such statements in his favour by alluring the defence witnesses. The Enquiry Officer has clearly proceeded on mere conjectures and surmises.
15. No reasoning has been furnished to discard the statements suffered by the defence witnesses. The obligation cast upon an Enquiry Officer to hold an impartial departmental enquiry which is an essential component of principles of natural justice has not been discharged. The findings recorded by the Enquiry Officer in the penultimate paragraph of the enquiry report are as such clearly perverse, as the findings do not find support by any evidence on record.
16. The assertion of bias and malafides against respondent No.5 would also require examination at this stage. It requires notice that even though respondent No.5 was impleaded by name and was duly served, she has chosen not to join contest and has not filed a written statement. There would be no dispute as regards the fact that the departmental enquiry had been initiated against the petitioner on the basis of the report submitted by respondent No.5. This would be apparent from the order dated 2.5.2009, Annexure P8. Learned counsel has referred to Annexure P1 i.e. an entry having been made by the petitioner in the rapat roznamcha on 14.3.2009 wherefrom it has been asserted that on account of the request of the petitioner for grant of casual leave having not even chosen to be forwarded by respondent No.5 in the capacity of the SHO of the concerned Police Station, the petitioner was feeling constrained to approach the senior police officers directly. Likewise, a reference has been made to yet another entry made by the petitioner in the rapat roznamcha on 25.3.2009 when assistance had been sought from the SHO with regard to detailing two or three more officials for arresting an accused wanted in an FIR registered at Police Station Bhondsi, Gurgaon and yet such assistance was chosen not to be provided by respondent No.5. Such entries dated 14.3.2009 at Annexure P1 and dated 25.3.2009 at Annexure P2, have not met any denial in the written statement filed on behalf of the State. The assertion on behalf of the petitioner is that as a counter-blast, respondent No.5 submitted a complaint dated 3.4.2009 to the Assistant Commissioner of Police, Manesar, Gurgaon recommending the initiation of disciplinary proceedings against the petitioner by stating that he is not obeying the orders of the SHO. Such complaint was returned by ACP with the remarks to quote the specific orders having been passed by the SHO i.e. private respondent No.5. Thereafter, identical complaints were furnished by respondent No.5 on 19.4.2009 and 28.4.2009 at Annexure P5 and Annexure P6 calling upon the superior authorities to initiate disciplinary action against the petitioner. Even such documents at Annexures P4 to P6 stand admitted. A glaring fact which would, thus, emerge is that respondent No.5 was clearly inimical towards the petitioner. She is the solitary prosecution witness to have deposed against the petitioner. Even such deposition on a minute perusal cannot be construed as clinching so as to hold petitioner guilty.
17. In the case [PRECEDENT] (supra), the Hon'ble Supreme Court had observed that the test as to whether there is a mere apprehension of bias or there is mere danger of bias would have to be seen from all the surrounding and attendant circumstances which ought to be collated and necessary conclusions to be drawn therefrom. If the conclusion is that there exist real danger of bias, the administrative action cannot be sustained. The Punishing Authority in the present case has accepted the findings of the Enquiry Officer. Inspite of the petitioner having raised a specific plea of bias at the hands of the SHO i.e. respondent No.5 as also against the Enquiry Officer having held him guilty without there being any credible evidence in the reply submitted to the show cause notice, yet the Punishing Authority in the impugned order has dealt with such contention in the following words:
"These contentions of the defaulter are false, frivolous and untenable. As stated in the foregoing paras, the Enquiry Officer has recorded his findings by weighing various pros and cons of the matter and especially making a comprehensive and analytical study of the facts and circumstances available on the departmental enquiry file. The defaulter has thus again made a vain deed to save his skin by twisting the facts. The findings of the Enquiry Officer are without any legal infirmities."
18. Clearly, the Punishing Authority has attributed a role to the Enquiry Officer of having made a comprehensive and analytical study of the facts and circumstances available on the departmental file which factually is non-existent. It is this very onerous duty cast upon the Enquiry Officer that has not been discharged. This would be clear from the findings of the Enquiry Officer that already stand noticed hereinabove. The Punishing Authority has proceeded with a pre-determined mind just to nail the petitioner. Such mis-carriage of justice even reflects in the impugned appellate order dated 3.7.2010 passed by the Commissioner of Police, Gurgaon whereby the detailed appeal preferred by the petitioner has been summarily rejected with a cryptic two line reasoning i.e. "I have perused copy of appeal and departmental enquiry proceedings record. Enquiry Officer has conducted departmental enquiry proceedings as per laid down procedure and principles of natural justice. The appeal is devoid of merit and hence rejected."
19. Taking an over view of the matter, this Court is of the considered opinion that there was no cogent and clinching evidence against the petitioner so as to hold him guilty of the charges levelled against him. The findings recorded by the Enquiry Officer were clearly perverse. The entire action suffers from the vice of a pre-determined course of action aimed to fix the petitioner. The impugned orders, as such, cannot sustain.
20. For the reasons recorded above, the present writ petition is allowed. The impugned orders dated 27.2.2010, Annexure P14, imposing the penalty of stoppage of two future increments with permanent effect as also the appellate order dated 3.7.2010, Annexure P16, affirming the order of penalty are quashed. The petitioner is held entitled to the requisite consequential benefits arising thereupon.
21. Petition allowed.
( [ENTITY] ) FEBRUARY 27, 2013 JUDGE SRM Note: Whether to be referred to Reporter? (Yes/No)