(.14 (ea LR (é) PAGgi§t3m2 El THE HON'BLE HIGH COURT OF CHHATTISQARH AT BILASPUR (C.G.) . i l WRIT PETITION (S) NO. §2 . Lf g OF 2007 SERVICE MATTER WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OI: INDIA FOR ISSUANCE OF A WRIT IN THE NATURE OF CERTIORARI, MANDAMUS, PROHIBITION AND/OR A SUITABLE DIRECTION OR ORDER TO DO JUSTICE IN THE MATTER PETITIONER Shri M. L. Ajgalle S/o Shri M. D.vAjgdlIe, ”K. Aged about 50 yeqrs Presently posted as CI Assistant Sub Inspector, Police Station Pondri, Distt.—Roipur (C.G.) VERSUS 1. State of Chhattisgarh, Through: Secretory, Home Department D.K.S. Bhawan, Mantralaya, Raipur (C.G.). Director General of Police, Police Head Quarter Raipur Distt: Raipur (C.G.) . Inspector General of police, Raipur Range, Raipur, Distt: Raipur (C.G.). . Deputy Inspector General of Police / Senior Superintendence of police Raipur, Distt: Rafpur (C.G.). . Superintendence of Police, Raipur City Distt: Raipur (C.G.) \9-" ‘1 QR“ wt“ . 'Ga‘eg' @xa" A RESPONDENTS: g0 u ‘ ‘. . . & Arr/e HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 5246 of2007 PETITIONER : Shri M.L.Ajgalle. VERSUS RESPONDENTS : State of Chhattisgarh & others. '. Post for pronouncement ofjndgment on “2.3?Tay of February, 2010. Sdl— Satish K. Agnihotri Judge $0 HIGH COURT OF CHHATTISGARH AT BILASPUR WRIT PETITION (S) No. 5246 of 2007 PETITIONER : Shri M.L.Ajga11e. VERSUS RESPONDENTS : State of Chhattisgarh & others. WRIT PETITION UNDER ARTICLE 226 OF THE CONSTITUTION OF INDIA SB: Hon’ble Shri Satish K. Agnihotriul. Present : Shri Prakash Tiwari, Advocate for the petitioner. Shri Y.S.Thakur, Deputy Advocate General with Shri A.V.Shridhar, Panel Lawyer for the State/respondents. JUDGMENT (Delivered on ”3.3??1ay of February, 2010) Challenge in this petition is to the order dated 05.07.2006 (Annexure P/l4) passed by the Deputy Inspector General of Police and 'Senior Superintendent of Police, Raipur, whereby one annual increment was Withheld with cumulative effect w.e.f. 01 .08.2006. 2. The indisputable facts, in nutshell, are that a show-cause-notice dated 15.02.2005 (Annexure P/l) was issued proposing to withhold one increment for a period of one year on the allegation that the petitioner was entrusted investigation of a case bearing Crime No. 102/2004 which was lodged by one Ram Bhawan Singh. The case was registered for the offences under section 363 and 366 of the Indian Penal Code with regard to kidnapping of his daughter Ku. Neelu Singh. During the course of investigation, the petitioner recovered the r? kidnapped girl from the house of accused/kidnapper, but the petitioner did not take any steps t0 arrest the accused and take further action. Even on instructions of the City Superintendent of Police, Urla, Raipur, dated 25.01.2005 the petitioner did not arrest the accused and further did not proceed with the investigation and committed serious misconduct and insubordination. The petitioner submitted his reply to the show cause notice on 19.02.2005 (Annexure P/2)’ On consideration of his reply, the Superintendent of Police, Raipur City, imposed a punishment of stopping of one increment for one year Without having effect on future increment and pension etc. In appeal to the Inspector General of Police, Raipur Region, Raipur, the Inspector General of Police, vide order dated 17.10.2005 (Annexure P/4) quashed the punishment of withdrawal of one increment for one year. Thereafter, a charge-sheet on the same set of charges was issued on 13.12.2005 (Annexure P/6) for having committed misconduct by not complying with the order of his superior officer and further not proceeding with the matter to arrest the kidnapper even after finding that girl Ku. Neelu Singh was kidnapped by one Lallan Giri. In the second visit, the girl was not found and the investigation did not proceed further. The charge sheet dated 12.12.2005 (Annexure P/6) accompanied with the list of witnesses and documents was issued by the Deputy Inspector General of Police and Senior Superintendent of Police, Raipur. The petitioner on 20.12.2005 sent a letter (Annexure P/7) demanding a copy of the order passed by Director General of Police for holding enquiry, name of the Head Constable posted at ,/ \% Police Station Urla, and copy of his statement, name of the officer and his designation who presented the letter dated 30.05.2004 of the Superintendent of Police, City, certified copy of the statement of Shri G.S.Bambra, the then City S.P.‘Urla, his present place of posting, certified copy of the certificate regarding attaining the age of majority ofNeelu Singh and document with regard to her name in the voter list, and some other documents. The petitioner was informed by letter dated 29.12.2005 (Annexure P/8) that all the information sought for by the petitioner are not relevant to the departmental enquiry, thus, the same were not supplied. The petitioner sought for assistance of an Advocate on 30.01.2006 (Annexure P/9). The petitioner was informed on 02.02.2006 (Annexure P/lO) that under the provisions of the M.P./C.G. Police Regulations, 1861 (for short ‘the Regulations, 186] ’), there is no provision to provide assistance of an Advocate and as such, the same was declined. The petitioner submitted a detailed reply on 07.01.2006 (Annexure P/ll) stating that the departmental enquiry was vitiated as the finding was recorded on the basis of preliminary enquiry, wherein the petitioner was not a party. The preliminary enquiry was a fact finding enquiry and he had no opportunity further to explain his conduct in not completing the investigation properly. The petitioner further requested that being a scheduled tribe, the petitioner is entitled to sympathetic" consideration under the memo dated 12.11.1997 of the General Administration i Department of the State 'of Madhya Pradesh. After completion of the enquiry, the Enquiry Officer Shri V.V.S. Rajput, City Superintendent of Police, Purani Basti, Raipur, submitted his enquiry report dated 13.06.2006 (Annexure P/13) holding th6 petitioner guilty of misconduct by not arresting the accused and taking away the kidnapped girl. It was further held that the petitioner has not conducted proper investigation in the matter. The petitioner was issued a second show cause notice on 15.06.2006 alongwith enquiry report. On submission of reply by the petitioner, the Disciplinary Authority, i.e. Deputy Inspector General of Police and Senior Superintendent of Police, Raipur, held that the allegations proved against the petitioner were serious in nature and as such, one increment with cumulative effect was withheld w.e.f 01.08.2006. The Inspector General of Police, in appeal filed by the petitioner, by order dated 17.08.2006 (Annexure P/15) dismissed the appeal holding that the punishment imposed by the Disciplinary Authority was proper. Thereafter, the petitioner preferred a mercy appeal before the Director General of Police. The same was also rejected vide order dated 22.05.2007 (Annexure P/16). Thus, this petition. Shri Tiwari, leamed counsel appearing for the petitioner, would submit that the once the imposition of punishment by the disciplinary authority on the same set of charges has been set aside by the appellate authority without grant of liberty to initiate de nova departmental enquiry, second de novo enquiry cannot be initiated after issuing fresh charge sheet on the same set of charges, when punishment has already been imposed earlier. It is bad in law and order of imposition of penalty is unjust, improper and vitiated. Shri Tiwari would further submit that the petitioner was not supplied the relevant documents, as sought for by the petitioner/delinquent employee by letter dated ' xii} 20-12-2005. Thus, the case of the petitioner was prejudiced and the petitioner was not in a position to participate in the departmental enquiry effectively and put forward his case. The Senior Superintendent of Police is not the competent authority to impose punishment of withholding one increment with cumulative effect, as the same is major penalty. 5. On the other hand, Shri Thakur, leamed Dy. Advocate General appearing with Shri Sridhar, learned Panel Lawyer for the State, would submit that the petitioner has not been punished twice, as first punishment was quashed rand no effect was given. Subsequently, different punishment of withholding one increment with cumulative effect, as permissible under the Regulation 270 of the Regulations, 1861 was imposed. The allegations leveled against the petitioner, which have been found proved, are of serious nature, if such officer is permitted in the service in uniform that would create a chaos in the society and, as such, a full~fledged enquiry was initiated. There is no dispute with regard to the fact that the petitioner was delinquent and v negligent in conducting the investigation, which led into non-arrest of the accused and removal of the kidnapped girl from the custody of the kidnapper. The documents sought by the petitioner were found irrelevant, thus, the copies of the same were not supplied to the petitioner. The petitioner was granted full opportunity to adduce his evidence, to produce witnesses and further to cross-examine the witnesses produced in the departmental enquiry and, as such, the enquiry conducted was just & proper and in accordance with the laid down statutory procedure. I have heard learned counsel appearing for the parties, perused the pleadings and the documents appended thereto. Contention of the petitioner that the disciplinary authority was not competent to pass the orden of withholding one increment Without cumulative effect is rejected, as the disciplinary authority working as Deputy Inspector General of Police has power to inflict, on Subedar; Assistant Police Prosecutors, Police Prosecutors, Inspectors and Officers of equivalent ranks, any of the punishments specified in Regulations 214 and 215 of the Regulations, 1861 other than punishments for removal, dismissal or compulsory retirement from service under the provisions of Regulation 222 of the Regulations, 1861. In the case on hand, the punishment imposed was neither removal nor dismissal nor compulsory retirement from service. ‘Accordingly, the DIG is fully competent to impose punishment of ‘ withholding / of one increment . with Cumulative effect, . which is specified in Regulation 214 (iv) of the Regulations, 1861. In the letter dated 10—12-2008 issued by the Director General of Police, it was directed that the Superintendent of Police has no power to withhold one increment with cumulative effect. 'The said direction is not I applicable to the facts of the case on hand, as in the present case, the DIG, who is fully empowered, has imposed the punishment of withholding of one increment with cumulative effect, has passed the order of punishment. On perusal Vof the first order of imposition of punishment to'withhold one increment Without cumulative effect, it appears that the said order was paésed by Superintendent of Police. The Superintendent of Police t t t has power under the Regulation 221 to impose punishment of withholding of one increment of Assistant Sub Inspector for a period of one year without cumulative effect. Thereagainst the petitioner preferred an appeal before the Inspector General of Police, Raipur Region, Raipur. The Inspector General of Police by order dated 17-10-2005 quashed the order dated 2-3-2005 passed by the Superintendent of Police wherein the annual increment was withhold without cumulative effect w.e.f. 19-1—2006. 9. The order dated 02.03.2005 (Annexure P/3) passed by the Superintendent of Police was quashed by the Inspector General of Police in appeal without consequential benefits by order dated 17.10.2005 (Annexure P/4). Thus, there is no bar to initiate a fresh disciplinary proceedings by the disciplinary authority. 10. Three Hon’ble Judges of the Supreme Court in Superintendent (Tech. I) Central Excise I.D.D. Jabalpur & Olhrers v. Pratap Rail, while considering the initiation of fresh adjudicatory proceedings under the Central Excise Act observed as under: “5....A perusal of the order of the Appellate Collector extracted above clearly shows two important facts : (1) that the Appellate Collector has not set aside or vacated the order of the Assistant Collector on merits but has vacated it only on a technical infirmity, namely, the Violation of the rules of natural justice and that is why the Appellate Collector has advisedly used the words "without prejudice" in his order, (2) that the Assistant Collector in his order dated June 30, 1969 had directed confiscation of the watches and imposed a penalty of Rs. 250/- and if the Appellate Collector intended to set aside this order completely i (1978) 3 SCC 113 and irrevocably then he should have passed a consequential order for refund of the amount of the penalty and release of the property confiscated. The fact that no such order was passed by the Appellate Collector clearly shows that he never intended to bar fresh adjudicatory proceedings provided they were conducted according to the principles of natural justice. It seems to us’ that whenever an order is struck down as invalid being in violation of the principles of natural justice there is no tinal decision of the cause and fresh proceedings are left open. All that is done is that the order assailed by virtue of its inherent defect is vacated but the proceedings are not terminated.” 11. The Supreme Court in Superintendent (Tech. I) (supra) ultimately held that the Assistant Collector had ample jurisdiction in issuing the notice against the respondent in order to start fresh adjudicatory proceedings in accordance with law. 12. The Supreme Court in State of Assam and Another v. J.N. Roy .Bz’swas2, observed as under : “4. We may however make it clear that no government servant can urge that if for some technical or other good ground, procedural or other, the first enquiry or punishment or exoneration is found bad in law that a second enquiry cannot be launched. . . .." 13. In the case on hand, since there was no direction to restore to the original position, the second enquiry can be initiated. l4. The main grievance of the petitioner that the petitioner was not supplied the requisite documents as prayed by letter dated 20.12.2005. The petitioner has already been supplied the list of relevant documents along with the charge sheet i.e. (l) letter No.R/CSP/Urla/Ja/295/05 2 (1976) 1 scc 234 dated 18.11.2005 issued by the City Superintendent of Police, Urla; (2) letter No.CSP/Urla/Rai/Par/l8/05 dated 28.1.2005 issued by Shri G.S. Bambra, the then City Superintendent of Police, Urla; (3) Statement of Rambhawan Singh; (4) letter No.SP/Rai/City/Reader/618 /2004 dated 30.5.2004 of Superintendent of Police, City, Raipur; and (5) Copy of FIR wherein crime No. 102/04 was registered. 15. The documents sought for by the petitioner, as aforestated, do not appear to be relevant documents, as the petitioner has asked for a copy of the order passed by the Director General of Police forrholding enquiry, name of the Head Constable posted at Police Station Urla, copy of his statement, name of the officer & his designation who presented the letter dated 30.5.2004 of the Superintendent of Police, City, certified copy of the statement of Shri G.S. Bambra and his present place of posting and further'whether Ku. Neelu Singh had attained the age of majority or not. The petitioner has not pointed out any defect in the departmental enquiry and, as such, on perusal of the enquiry report, it appears that the findings recorded by the enquiry officer are based on appreciation of proper evidence. It is not a case of no evidence. 16. The Supreme Court in Apparel Export Promotion Council v. A.K. Chopra3, observed as under : 16. The High Court appears to have overlooked the settled position that in departmental proceedings, the disciplinary authority is the sole judge of facts and in case an appeal is presented to the appellate authority, the appellate authority has also the power/and jurisdiction to reappreciate the evidence and come to its own 3 (1999) 1 scc 759 conclusion, on facts, being the sole fact- fmding authorities. Once findings 0f fact, based on appreciation of evidence are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were based either on no evidence or that the findings were wholly perverse and/or legally untenable. The adequacy or inadequacy of the evidence is not permitted to be canvassed before the High Court. Since the High Court does not sit as an appellate authority over the factual findings recorded during departmental proceedings, while exercising the power of judicial review, the High Court cannot, normally speaking, substitute its own conclusion, with regard to the guilt of the delinquent, for that of the departmental authorities. Even insofar as imposition of penalty or punishment is concerned, unless the punishment or penalty imposed by the disciplinary or the departmental appellate authority, is either impermissible or such that it shocks the conscience of the High Court, it should not normally substitute its own opinion and impose some other punishment or penalty. Both the learned Single Judge and the Division Bench of the High Court, it appears, ignored the well—settled principle that even though judicial review of administrative action must remain flexible and its dimension not closed, yet the court, in exercise of the power ofjudicial review, is not concerned with the correctness of the findings of fact on the basis of which the orders are made so long as those findings are reasonably supported by evidence and have been arrived at through proceedings which cannot be faulted with for procedural illegalities or irregularities which vitiate the process by which the decision was arrived at. Judicial review, it must be remembered, is directed not against the decision, but is confined to the examination of the decision—making process. Lord Hailsharn in Chief Constable of the North Wales Police v. Evans observed: 11 “The purpose of judicial review is to ensure that the individual receives fair treatment, and not to ensure that the authority, after according fair treatment, reaches, on a matter which it is authorized or enjoined by law to decide for itself, a conclusion which is correct in the eyes of the court.” 17. Judicial review, not being an appeal from a decision, but a review of the manner in which the decisioii was arrived at, the court, while exercising the power of judicial review, must remain conscious of the fact that if the decision .has been arrived at by the administrative authority after following the principles established by law and the rules of natural justice and the individual has received a fair treatment to meet the case against him, the court cannot substitute its judgment for that of the administrative authority on a matter which fell squarely within the sphere of jurisdiction of that authority.” 17. In State of Uttar Pradesh and Another v. Man Mohan Nath Sinha and Another4, the Supreme Court observed as under : “14. The scope of judicial review in dealing with departmental enquiries came up for consideration before this Court in State of A.P. v. Chitra Ventaka Rao and this Court held : (SCC pp. 562-63, paras 21 and 23-24) “21. ......... The High Court is not a court of appeal under Article -226 over the decision of the authorities holding a departmental enquiry against a public servant. The Court 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. Second, where there is some evidence which the 4 (2009) 8 SCC 310 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 to review the evidence and to arrive at an independent finding on the evidence. 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 1 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 ‘pi'operly held, the sole judges of facts and if there is some legal evidences 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. * * * 23. The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction. The 'Court exercises it not as an appellate court. The findings of fact reached by an inferior court or tribunal as a result of the appreciation of evidence are not reopened or questioned in writ proceedings. An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of fact, however grave it may appear to be. In regard to a finding of fact recorded by a tribunal, a writ can be issued if it is shown that in recording the said finding, the tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding. Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorari. A finding of fact recorded by the Tribunal cannot be challenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding. The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal. See Syed Yakoob v. K.S. Radhakrishnan. 24. The High Court in the present case assessed the entire evidence and came to its own conclusion. The High Court was not justified to do so. Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey. The Tribunal gave reasons for its conclusions. It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions. The High Court reviewed the evidence, reassessed the evidence and then rejected the evidence as no evidence. That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do." 15. The legal position is well settled that the power ofjudicial review is not directed against the decision but is confined to the decision making process. The Court does not sit in judgment on merits of the decision. It is not open to the High Court to re-appreciate and reappraise the evidence led before the Inquiry Officer and examine the findings recorded by the Inquiry Officer as a court of appeal and reach its own conclusions. In the instant case, the High Court fell into grave error in seaming the evidence as if it was a court of appeal. The approach of the High Court, in consideration of the matter suffers from manifest error and, in our thoughtful consideration, the matter requires fresh consideration ‘by the High Court in accordance with law. On this short ground, we send the matter back to the High Court.” l8. Applying the well settled principles of law to the facts of the case on hand and for the reasons mentioned hereinabove, the petitioner is not entitled to any relief. 19. In the result, the writ petition fails and is hereby dismissed. 20. There shall be no order asto costs. Sd/- Satish K. Agnihotri Judge Amit/ Gowri