W.P. (C.) No. 13652 of 2009 Page 1 of 5 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P. (C.) No.13652/2009 % Date of Decision: 07.12.2009 Union of India & Others …. Petitioners Through Mr.R.V. Sinha, Advocate Versus Sh. Mukesh Kumar Sharma …. Respondent Through Mr.Sachin Chauhan, Advocate CORAM: HON’BLE MR. JUSTICE ANIL KUMAR HON’BLE MR. JUSTICE VIPIN SANGHI 1. Whether reporters of Local papers may be allowed to see the judgment? YES 2. To be referred to the reporter or not? NO 3. Whether the judgment should be reported in the Digest? NO ANIL KUMAR, J. * The petitioner in the present petition have impugned the order dated 28th May, 2009 in OA NO.636 of 2008 passed by the Central Administrative Tribunal, Principal Bench, New Delhi titled Shri Mukesh Kumar Sharma v. Union of India and Others quashing the report of the Inquiry Officer and setting aside the punishment of withholding respondent‟s increment for two years with cumulative effect by order dated 25th October, 2006 of the Disciplinary Authority and order dated 16/17th January, 2008 of the Appellate Authority dismissing the appeal of the respondent. W.P. (C.) No. 13652 of 2009 Page 2 of 5 Charges were leveled against the respondent that he exhibited gross negligence in discharge of his duties with the allegation that he had been harassing the residents of Christian colony and had been demanding money from them. After enquiry, the disciplinary authority had awarded the punishment of withholding his increments for two years with cumulative effect by order dated 25th October, 2006 and the appeal filed by the respondent was dismissed by order dated 16th/17th January, 2008. The Tribunal while considering the petition of the respondent noted that the charges against the respondent had two components, i.e., that the respondent had been harassing some of the residents of Christian colony and demanding money from them, and he had made calls to police on PCR vans on 20th May, 2004; 26th May, 2004; 28th May, 2004 and 25th June, 2004 regarding unauthorized construction and encroachment in Christian colony but he did not file any written report on the matter in L&DO for taking further action. The Tribunal after considering the pleas, contentions and the inquiry report noted that the findings of the Inquiry Officer are not in accordance with the prescribed procedure under the CCS (CCA) Rules, 1965. It was also noticed that the complainants who had alleged that W.P. (C.) No. 13652 of 2009 Page 3 of 5 the respondent had been demanding money from them had not been examined, though they were the material witnesses and in absence of their testimonies, the charge against the respondent that he had been harassing some of the residents and demanding the money from them, could not have been established. Regarding the calls made to the PCR vans, it had transpired that no evidence was produced except the report of the Additional Deputy Commissioner of Police which was not sufficient to establish the allegations against the respondent, as the DD entries on 20th May, 2004 and 28th May, 2004 did not indicate that the calls were made by the respondent. In these circumstances, the Central Administrative Tribunal has set aside the report of the Inquiry Officer and punishment awarded to him on the ground that there was no evidence against the respondent proving the charges made against him. It has been held that the Inquiry Officer had taken contradictory stands without any evidence and the observations of the Inquiry Officers were based on his surmises and conjectures. The Inquiry officer had surmised that police station may be keeping a separate record regarding the calls made to the PCR van and that such record may have the respondents name, even though the daily diaries for the concerned dates (when the respondent is alleged to had made the calls) did not reflect the name of the respondent. None of the witnesses have deposed that a separate record regarding the complaints received by the PCR vans is maintained. There was no evidence that the respondent had harassed any resident of Christian colony and the alleged inferences by W.P. (C.) No. 13652 of 2009 Page 4 of 5 the Inquiry Officer were only based on his surmises. In the circumstances, the Tribunal has set aside the inquiry report and the punishment awarded by the Disciplinary Authority and has also set aside the order of Appellate Authority dismissing the appeal of the respondent. The High Court in exercise of its power under Article 226 of the Constitution of India and of Judicial review deals with decision making process and not with re-appreciation of evidence. In any case, the findings of the Tribunal that the inferences of the enquiry officer were based on his surmises and conjectures and not on cogent evidence has not been successfully assailed by the petitioners. The counsel for the petitioner has not been able to show such cogent evidence against the respondent, which will establish the charges made against the respondent. The decision of the Tribunal that the findings of the enquiry officer were perverse and without any evidence, cannot be faulted in the facts and circumstances. Evidence recorded and inferences drawn were not commensurate with charges and therefore, the charges had not been established. Supreme Court in M.V. Bijlani v. Union of India, (2006) 5 SCC 88, at page 95 had held: “25. It is true that the jurisdiction of the court in judicial review is limited. Disciplinary proceedings, however, being quasi-criminal in nature, there should be some evidence to prove the charge. Although the charges in a departmental proceeding are not required to be proved like a criminal trial i.e. beyond all reasonable doubt, we cannot lose sight of the fact that the enquiry officer performs a quasi-judicial W.P. (C.) No. 13652 of 2009 Page 5 of 5 function, who upon analysing the documents must arrive at a conclusion that there had been a preponderance of probability to prove the charges on the basis of materials on record. While doing so, he cannot take into consideration any irrelevant fact. He cannot refuse to consider the relevant facts. He cannot shift the burden of proof. He cannot reject the relevant testimony of the witnesses only on the basis of surmises and conjectures. He cannot enquire into the allegations with which the delinquent officer had not been charged with.” In the circumstances, the order of the Tribunal does not suffer from any error so as to require interference by this Court in exercise of its jurisdiction under Article 226 of the Constitution of India. The writ petition is therefore, without any merit. The writ petition is therefore, dismissed. ANIL KUMAR, J. December 07, 2009 VIPIN SANGHI, J. „Dev‟