IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) FRIDAY, THE TWENTY FIFTH DAY OF JULY TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE RAMESH RANGANATHAN WRIT PETITION NO : 32094 of 1998 Between: ..... PETITIONER AND .....RESPONDENT Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to Counsel for the Petitioner:MS.G.MADHURI Counsel for the Respondent No.: SMT.C.VANI REDDY The Court made the following : THE HON’BLE SRI JUSTICE RAMESH RANGANATHAN WRIT PETITION No.32094 of 1998 ORDER: This writ petition is filed questioning the order of the 2nd respondent dated 05.02.1998, as confirmed by the order of the 1st respondent dated 03.09.1998 and a direction is sought to quash both the orders. By his Order dated 05.02.1998, the 2nd respondent-Deputy Inspector General, Central Industrial Security Force (S.Z.) imposed on the petitioner the penalty of dismissal from service. Aggrieved thereby, the petitioner preferred an appeal and the 1st respondent-Inspector General (S.W.S), vide proceedings dated 03.09.1998, rejected the appeal on the ground that it was devoid of merits both in fact and in law. The petitioner, a constable in “A” Coy, C.I.S.F. Unit, Visakhapatnam Port Trust, Visakhapatnam, was issued charge memo dated 30.08.1997 on the following charges:- “i) That CISF No.854510083 Constable V.Dharma Raju of ‘A’ Coy, CISF Unit, VPT, Visakhapatnam had left his H-8 duty post alongwith CISF No.854510117 Constable D.Rushikesava Reddy and went to residence of Mylipali Sanyasi Rao, a civilian on 7.8.97 at about 0330 hrs without any permission or information to his superior which amounts to gross negligence and dereliction of duty. ii) That CISF No.854510083 Constable V.Dharma Raju of ‘A’ Coy, CISF Unit, VPT, Visakhapatnam had connived with criminals viz., M.Sanyasi Rao, M.Polamma and M.Lakshmi in that he failed to prevent the criminals while they were filling up Di-ammonia Phosphate (DAP) in two bags and one plastic bucket and keeping the bags filled with DAP at his duty post at about 0355 hrs on 7.8.97, during his tenure of duty, thereby he showed utter indiscipline, irresponsibility and misconduct amounting to unbecoming conduct of a member of an Armed Force of the Union. iii) That CISF No.854510083 Constable V.Dharma Raju of ‘A’ Coy, CISF Unit, VPT, Visakhapatnam, is having bad records in that he was awarded 01 Major punishment and two Minor punishments on earlier occasions. The Disciplinary Authority intends to take notice of previous bad records of Constable V.Dharma Raju into account in deciding on the quantum of punishment.” The petitioner submitted his written explanation thereto on 07.09.1997 and, on the said explanation being found unsatisfactory, the Assistant Commandant of CISF Unit was appointed as an Enquiry Officer, vide proceedings dated 10.09.1997, to enquire into the charges. The Enquiry Officer conducted an enquiry and held all the charges leveled against the petitioner as proved. A copy of the enquiry report was supplied to the petitioner by the Commandant, CISF Unit, vide letter dated 28.11.1997, calling upon him to submit his written representation, if any within 15 days from the date of receipt of the letter. The petitioner received a copy of the enquiry report on 29.11.1997 and submitted an application on 01.12.1997 requesting that the english version of the enquiry report be supplied to him. The english version of the enquiry report was served on the petitioner on 20.12.1997, to which the petitioner submitted his written representation on 02.01.1998. The Disciplinary Authority, in his order dated 05.02.1998, accepted that, with regards charge No.1, there was no eye witness to prove that the petitioner and Sri D.R.K.Reddy went to the residence of Sri M.Sanyasi Rao without permission. He observed that, as per the statements of P.Ws.2,3 and 4 who apprehended Sri M.Sanyasi Rao, his wife and daughter while gathering the DAP, it was evident that they came to know that the petitioner and Sri D.R.K.Reddy had engaged the three civilians to remove the DAP from the road and this circumstantial evidence clearly proved that the petitioner, along with Sri D.R.K.Reddy, had visited the residence of the civilians and had engaged them to remove the DAP from the road. The Disciplinary Authority held that charge no.2 was proved with reference to the statements of P.Ws.2,3 and 4 and that charge no.3 was proved basing on the service records of the petitioner as produced by the witness during the course of enquiry. The Disciplinary Authority, agreeing with the findings of the Enquiry Officer, held the petitioner guilty of all the three charges and, accordingly, imposed on him the punishment of removal from service. The order of the Disciplinary Authority was confirmed by the Appellate Authority, who noted that five prosecution witnesses were examined by the Enquiry Officer and they had adequately proved the charges leveled against the petitioner to the effect that he had left the duty post on 07.08.1997 at about 0330 hours to go to the residence of civilians without the permission of the superior authorities and had also connived with the criminals on 07.08.1997 thereby allowing them to take the property, namely Di-ammonia Phosphate, in tin bags and also to have kept the bags at his duty post on the night of 07.08.1997. The Appellate Authority also noted that charge no.3 related to the punishment earned by the petitioner earlier which was based on the entries made in his service record. The Appellate Authority noted that, in the enquiry, the petitioner had cross-examined the witnesses, but could not prove anything substantial in support of his defence, that the Enquiry Officer has based his findings solely on considering the evidence on record, both oral and documentary. The Appellate Authority found nothing on record to suggest that the Enquiry Officer was prejudiced against the petitioner or that he had recorded his findings unfairly. He held that there was overwhelming evidence to sustain the charges against the petitioner, that it was incorrect to contend that he was denied an opportunity to represent the case before the Disciplinary Authority and that the Disciplinary Authority had passed final orders correctly. The Appellate Authority found no procedural infirmity in the departmental enquiry held against the petitioner and observed that in the facts and circumstances of the case, particularly since the proven charges were grave in nature, the punishment awarded could not be said to be excessive and, accordingly, dismissed the appeal. Sri A.Hanumantha Reddy, learned counsel appearing on behalf of the petitioner, would contend that the findings on charge no.1 was based on no evidence. Learned counsel would submit that the conclusions of the Enquiry Officer and the Disciplinary Authority that charge no.2 was established was based on surmises and conjectures. He would submit that, under Section 10 and 14 of the Central Industrial Security Force Act, 1968, a Constable in the Central Industrial Security Force was required only to protect and safeguard industrial undertakings owned by the Central Government together with such installations as were specified by the Government to be vital for carrying on of work in those undertakings, and that there was no evidence on record to show that the DAP powder, (a chemical fertilizer), which fell down from a lorry on a busy thoroughfare, outside the premises/limits of Visakhapatnam Post Trust, belonged to any undertaking owned or controlled by the Central Government. Learned counsel would state that there was no evidence on record to connect the DAP powder strewn on the road, a busy thoroughfare, with the Visakhapatnam Port Trust, to which undertaking the petitioner was posted as a Constable. Learned counsel would point out that it was the specific case of the petitioner, during the enquiry, that he was permitted by the agent Sri Sharath Chaterjee to collect the DAP powder, which was strewn on the road, for his personal use and the mere fact that the petitioner had requested three civilians to collect the DAP powder and put them into bags did not amount to misconduct, since it was nobody’s case that the DAP powder found on the road belonged to the Visakhapatnam Post Trust or that the material was being transported from within, or to go inside, the premises of the Visakhapatnam Post Trust. According to the learned counsel the mere fact that the petitioner had engaged the services of three civilians, to collect the unclaimed DAP powder lying on the road, did not amount to misconduct, for which the disciplinary action could have been taken under the applicable rules. Learned counsel would point out that charge no.3 which related to the petitioner’s previous record could not, by itself, be a ground to impose a punishment on him and it is only if charges 1 and 2 were established, could charge no.3 be taken into consideration in determining the appropriate penalty to be imposed. According to the learned counsel, since charges 1 and 2 had itself not been established, the question of the petitioner being punished solely on the basis of charge no.3 would not arise. Learned counsel would further contend that failure to examine the civilians in the enquiry, and thereby denying an opportunity to the petitioner to cross-examine such witnesses, vitiated the enquiry proceedings, since the finding of guilt recorded in respect of charge no.2 was on the basis of an alleged statement made by the civilians before Pws.2, 3 and 4. Learned counsel would point out that the circumstances under which such a statement was made could have been elicited in cross-examination by the petitioner and denying him reasonable opportunity of doing so would necessitate the enquiry proceedings, held against him, to be set aside. Learned counsel would place a copy of the order of the Criminal Court in C.C.No.181 of 1998 dated 20.10.1998 before this Court in support of his submission that, while the respondents had lodged a complaint against the three civilians for lifting DAP powder, these three civilians were acquitted of the charge in the Criminal Case. Learned counsel would contend that, in any event, the punishment of dismissal from service imposed on the petitioner was shockingly disproportionate justifying interference under Article 226 of the Constitution of India. Learned counsel would rely on Central Bank of India Ltd. v. Prakash Chand Jain, K.Abdul Gaffor v. High Court of A.P., B.C.Chaturvedi v. Union of India and others and Ranjith Thakur v. Union of India. Smt C.Vani Reddy, learned Central Government Standing Counsel, on the other hand, would submit that there was an adequate evidence adduced in the departmental enquiry to substantiate the charge, that the finding of guilt recorded by the Enquiry Officer was on the basis of the evidence on record, that in departmental enquiries even hearsay evidence which had a probable nexus to the charge could be taken into consideration, that an identical charge sheet issued against the other Constable Sri D.R.K.Reddy, which had also resulted in imposition of punishment of removal from service, was upheld by this Court in W.P.No.2080 of 1999 dated 03.09.2004, that this Court would not re-appreciate the evidence on record to arrive at a conclusion different from that of the Enquiry Officer/Disciplinary Authority, that this Court would not sit in appeal or substitute its conclusions for the findings of fact recorded by the Enquiry Officer, that the punishment to be imposed for proved misconduct is in the employer’s realm and that this Court would not substitute the punishment imposed by the employer with another. According to the learned counsel, the discipline required of a member of the C.I.S.F., which is an armed force, is of a very high order and that the charge of leaving his duty post or collecting Di- ammonia Phosphate powder, which do not belong to him, necessitated a deterrent penalty being imposed on him. Learned counsel would submit that the Order of the Court below does not necessitate interference by this Court under Article 226 of the Constitution of India. As is evident from the order, placed before me by Smt.C.Vani Reddy, Learned Central Government Standing Counsel, Constable Sri D.Rushikeshava Reddy had approached this court questioning the order of punishment imposed on him and this Court, by order in W.P.No.2080 of 1999 dated 23.9.2004, had dismissed the Writ Petition holding that the order did not suffer from any legal infirmity. Smt.C.Vani Reddy, Learned Central Government Standing Counsel, would contend that, since identical charges were framed against Sri D.R.K.Reddy and the petitioner, dismissal of the Writ Petition filed by Sri D.R.K.Reddy would necessitate a similar order being passed in this writ petition also. I am afraid I cannot agree. None of the contentions raised by Sri A.Hanumantha Reddy, Learned Counsel for the petitioner, before this Court were raised in W.P.No.2080 of 1999. Since none of these questions fell for consideration, the said judgment would constitute a binding precedent necessitating a similar order being passed in the present writ petition. The jurisdiction, to issue a writ of certiorari, and quash the order of punishment imposed on a delinquent employee, is supervisory and the Court does not act as an appellate Court. This limitation necessarily means that the findings of fact reached by the inferior Court or Tribunal, as a result of appreciation of evidence, cannot be 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 the Tribunal, a writ of certiorari 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. Similarly, 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. In dealing with this category of cases, however, it must always be borne in mind that a finding of fact recorded by the Tribunal cannot be challenged in certiorari proceedings on the ground that the relevant and material evidence adduced before the Tribunal was insufficient or inadequate to sustain the impugned 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, and the said points cannot be agitated before a Writ Court. It is within these limits that the jurisdiction conferred under Article 226 to issue a Writ of Certiorari can be legitimately exercised. Where it is manifest or clear that the conclusion of law recorded by an inferior Court or Tribunal is expressly founded on reasons which are wrong in law, the said conclusion can be corrected by a writ of certiorari. To be amenable to correction in certiorari jurisdiction, the error committed by the court or authority, on whose judgment the High Court was exercising jurisdiction, should be an error which is self- evident. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. (Syed Yakoob Vs. K.S. Radhakrishnan, Ranjeet Singh Vs. Ravi Prakash). As to what would constitute an error of law the Supreme Court, in Municipal Council, Sujanpur Vs. Surinder Kumar, observed:- “……The High Court’s jurisdiction to issue a writ of certiorari though is limited, a writ of certiorari can be issued if there is an error of law apparent on the face of the record. What would constitute an error of law is well known. In Judicial Review of Administrative Action , IVth Edn., pp. 136-37, S.A. de Smith has summed up the position: “The concept of error of law includes the giving of reasons that are bad in law or (if there is a duty to give reasons) inconsistent, unintelligible or, it would seem, substantially inadequate. It includes also the application of a wrong legal test to the facts found, taking irrelevant considerations into account and failing to take relevant considerations into account, exercising a discretion on the basis of any other incorrect legal principles, misdirection as to the burden of proof, and wrongful admission or exclusion of evidence, as well as arriving at a conclusion without any supporting evidence………..” It is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not the impugned error is an error of law, and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case. (Syed Yakoob5). While Courts in judicial review will not normally interfere with assessment of fact, in certain situations, however, they may do so: first, where the existence of a set of facts is a condition precedent to the exercise of a power and second, when the decision-maker has taken into account as a fact something which is wrong or where he has misunderstood the facts upon which the decision depends or where the evidence, taken as a whole, is not reasonably capable of supporting a finding of fact. Again, these decisions are best described as strictly “irrational”. (Judicial Review of Administrative Action: de smith, woolf & Jowell–Fifth Edition). The High Court, under Article 226 of the Constitution, has jurisdiction to enquire whether the conclusion of the disciplinary/appellate authority, on which the impugned order of punishment rests, is not supported by any evidence at all. The proceedings held against the delinquent employee under the rules to determine whether he is guilty of the charges framed against him are in the nature of quasi-judicial proceedings and a writ of certiorari can be claimed by the delinquent employee if he is able to satisfy the High Court that the ultimate conclusion of the disciplinary/appellate authority in the said proceedings, which is the basis of the punishment imposed on him, is based on no evidence. (Union of India Vs. H.C. Goel). If a finding of fact is made by the impugned order, and it is shown that it is based on no evidence, that would be a point of law open to be urged under Article 226. (W.M. Agnani Vs. Badri Das). The High Court would be justified in quashing the impugned order if it is satisfied that the said order is not based on any evidence at all. An order passed by a Tribunal, holding a quasi-judicial enquiry, which is not supported by any evidence is an order which is erroneous on the face of it and, as such, is liable to be quashed by the High Court in exercise of its high prerogative jurisdiction to issue a writ under Article 226. But the conclusion that the impugned order is not supported by any evidence must be reached after considering the question as to whether probabilities and circumstantial evidence do not justify the said conclusion. (Board of High School & Intermediate Education Vs. Bagleshwar Prasad). ‘No evidence’ does not mean total dearth of evidence. It extends to any case where the evidence, taken as a whole, is not reasonably capable of supporting the finding, or where no tribunal could reasonably reach that conclusion on that evidence. This ‘no evidence’ principle has something in common with the principle that perverse or unreasonable action is unauthorized and ultravires. It also has some affinity with the substantial evidence rule which requires that findings be supported by substantial evidence on the record as a whole. Lord Denning MR, in Ashbridge Investments Ltd Vs. Minister of Housing and Local Government, put ‘no evidence’ at the head of the list of vitiating errors, saying:- “……The court can interfere with the Minister’s decision if he has acted on no evidence; or if he has come to a decision to which on the evidence he could not reasonably come; or if he has given a wrong interpretation to the words of the statute; or if he has taken into consideration matters which he ought not to have taken into account, or vice versa; or has otherwise gone wrong in law. It is identical with the position when the court has power to interfere with the decision of a lower tribunal which has erred in point of law……” (Administrative Law: H.W.R. Wade & C.F. Forsyth Ninth Education) It is within this limited area that the facts of the present case and the contentions raised, both for and against the impugned order, are required to be examined. The entire controversy revolves around collection of Di-Ammonia Phosphate powder (DAP) which had fallen down from a lorry and was strewn all over the busy thoroughfare nearby the check-post where the petitioner and another constable of the Central Industrial Security Force were on duty. The ingredients of the first charge are: (a) that the petitioner left his duty post; (b) that he did so along with constable Sri D.Rushikesava Reddy; (c) that both of them went to the residence of Mylipalli Sanyasi Rao, a civilian on 7.8.1997 at about 03.30 hours; (d) that their leaving their station and proceeding to the residence of Mylipalli Sanyasi Rao was without either intimation to, or permission from, their superiors. The enquiry officer, after noting the statements of witnesses, refers to certain points which, according to him, are “undisputed”. Among the points which the enquiry officer, himself, considers disputable is whether, as per the standing orders, a sentry could leave the duty post when an incident occurs nearby and at what time the petitioner had left his duty post to call the civilians from their huts. In his findings, the enquiry officer holds that the petitioner, while he was on duty at H-8 post had called the thieves from their huts. The enquiry officer has not even referred to the evidence on the basis of which he was arrived at such a conclusion. On the other hand, he puts the onus on the petitioner to prove his innocence. While the degree of proof in domestic enquiries is preponderance of probabilities, and not proof beyond reasonable doubt, the onus to establish the charge, nonetheless, rests on the employer and the charged employee cannot be presumed guilty until proven otherwise. It is only if the employer is able to establish the charge on preponderance of probabilities, would the onus shift on the employee who would then be required to rebut the evidence let in by the employer to substantiate the charge. P.W.1, in cross-examination, stated that when he had gone to the incident spot Constable Sri D.R.K.Reddy had told him that they had called civilians to lift the DAP. It is the word “they” in the evidence of P.W.1 which is taken to be a reference to the petitioner also. It is necessary to note that, while Constable Sri D.R.K.Reddy had also been charged for a similar offence, the respondents conducted separate departmental enquiries against both the delinquent employees. Neither was any statement made by Constable Sri D.R.K.Reddy put to the petitioner nor was the petitioner given an opportunity to cross- examine Sri D.R.K.Reddy on this aspect. P.W.1’s statement that Constable D.R.K.Reddy told him that “they” had gone to call civilians, without any further evidence on record, cannot form the basis to hold the petitioner guilty of Charge No.1. In fact, P.W.1 in his cross-examination admitted that he found the petitioner alert at his duty post. The disciplinary authority holds that the enquiry officer had not recorded the statement of the civilian Sri M.Sanyasi Rao only because a police case had been registered against him, his wife and daughter. The disciplinary authority takes note of the statement said to have been made by Sri M.Sanyasi Rao to P.W.2 that he, his wife and daughter had been engaged by the petitioner and Constable D.R.K.Reddy to lift the DAP. The Disciplinary authority admits that there were no eye-witnesses to prove that the petitioner went to the residence of Sri M.Sanyasi Rao without any permission.