AFR IN THE HIGH COURT OF CHHA’IVI‘ISGARH : BILASPUR Writ Pctih‘on No 4942 of2004 Petitioner Santosh Kumar Yadav, aged about 34 years, son of Shri Punau Lal Yadav, resident of village and Post Surgi, Biock, Tah and Distt. Rajnandgaoa (Chhattisgarh) Versus Respondents 1. Stats of Chhattisgarh, through : the Secmtary, Departmcnt of Homes, . D.K.S.Bhawan, Raipur (Chhattisgarh) 2. The Director General of Police, Police Head Quarter, Raipur (Chhath'sgarh) The Deputy Inspector General of Police, Armed Police Fame, Bhilai, Chhattisgarh. The Commandant, First Battalion, Chhatu'sgarh Aimed Police Foxte, Bhilai, Distt. Durg (Chhattisgarh) WRIT PETITION UNDER ARTICLE 22b and 227 OF THE CONSTH‘UTION OF INDIA. (SB: Hon’ble Shri Satish K. Agnihotri J.) Shn‘ P. P. Sahu, Advocate fog the peu‘tioner. Shri P. K. Bhadun‘, Panel Lawyer for the mspondents/ State. O R D E R (Passed on this 2nd Day of September, 2008) 1. The petitioner, by this petition, impugns the order dated 21.6.2002 (Annexme Pf 1), passed by the respondent No.4, whereby the peu‘tioner has been Iemovecl fmm seivice, as the chaxges levelled against him were found proved in the departmental enquiry. 2. ’l‘he bn‘ef‘facts, in nutshell, are that the petitioner was xecruited as Constable No. 241 on 16.12.1988. While the petitioner was posted in C. Company, Camp — Basaguda, Disnict - Dantewada, he was granted 15 days leave from 22.11.2000 to 7.12.2000. After availing the sanctioned leave, \ the petitioner joined his duty on 8. 12.2000 in the. headquarter V\ " of the company, from Where he proceeded to the camp at Basaguda. But, instead of taking departure (Rawangl) for reporu’ng on duty in the camp at Basaguda on 8. 12.2000, the petitioner did not join at the camp. He remained 1mauthorizedly absent for total 86 days, when he joined his duties on duty on 4.3.2001 at 11.30 hours. A not'ce Was sent to the petitioner on 10. 1.2001 at his home address to join his duu‘es. Thereafter, the explanation of the petitioner was called as he had submitted unlit and tit medical certihcates, according to which he took medical twatment on 9.12.2000 and he should have joined his duties on 23.2.2001, but he reported on duty, thereafter on 4.3.2001. On 9.6.2001 in a surprise inspection, the peh'tioner was found absent nom his place of duty. After search, he was found in inebriated condition at a nearby place. On 26.7.2001 also, the petitioner remained absent from me duty and he was found m the same inebriated condition. On 27.7.2001 Whilr the police party was on duty at a public place in bazaar, the petitioner was found in inebriated condition and one round of bullets was found short in his S.L.R. pistol. On scrutiny of the service book, it was found that'the petitioner was'habitual of remaining absent from Work. On 1.10.1998 While in inebriated condition, he indulged in exchange of blows with the general public. 0n the basis of all these allegations a charge sheet was issued to the petitioner on 14.9.2001 (Annexare P/2), containing following charges:- 1%. 8.122000 ii 3.3.2001 W Hg?! as m m W aim/3133?: a? mm 31w m affal $ iii?! Warm $1 m Trim I “ emit: $m‘75—1 1%. 2712001 $1 wa§ WW$W 1i qa 3h?! “am ma ti' Mn mmawmmW$¥iw WWW—2 31m m—a OMWI mmwmii‘gméaum mmw$mwiimi§§aww mu” 6. ‘ln the full-fledged proper departmental enquily, all the thlee charges levelled against the petitioner were found proved. The departmental enqujly mport was served upon the petilioner under order dated 4.5.2002 [Annexure 'P/ 3), calling upon him to‘ submit reply. After consideration of the reply of the petiiioner, the peu‘t‘loner was removed from selvice on 21.6.2002. The period h‘om 8.12.2000 to 3.3.2001, the period when the petitioner remained absent 00m his duty, was directed to be treated as ‘no work no pay’. 7. Thereafter, the petitioner preferred an appeal, which was rejected by the Deputy Inspector General of Police, Chhattisgarh Armed Police, Bhilai by order dated 24.9.2002 (Annexure P/4). The mercy appeal of the petitioner was also rejected vide order dated 15. 1.2004 (Apnexure P/ 5), passed by the Special Secretary, State of Chhattisgarh, Home Department. l have heard learned counsel appearing for the petitioner, perused pleadings and documents appended thereto. 9. The only ground raised by leamed counsel appean'ng for the petitioner is that the enquiry o$cer should have informed the petitioner that hc has n'ght to take assistance of any mu‘red or working employee for his proper defence in the departmental enqmry. Mr. Sahu further submits that in absence of assistance, the petitioner was not in a posiu'on to cross‘ examine the senior ofiicer properly. To substantiate his submission, learned counsel relied on a decision of the Hon’ble Supreme Court in Bhagat Ram v. State of Himachal Pradesh and othersl. In that matter the appellant was a class four Forest Guard. A departmental enquiry was conducted against the appellant ( a Class-IV employee — Forest Guard ) and a co- delinquent onicer was a Block 0thcer. That co-delinquent o$cer was being defended by another oilicer. Thus, Hon’ble Supreme Court held that “In the facts and circumstances of this case herein threadbare discussed, we are of the opinion that the appellant was not ahbrded a reasonable opportunity to defend himself and accordingly the enquiry and consequential order of removal hem service are vitiated". 10. In P. D. Agawal Vs. State Bank of India and others? , Their Lordships held a's under:— “30. The principles of natural justice cannot be put in a snaitjacket formula. lt must be seen in circumstantial ilem’bility. It has separate facets. It has in recent time also undergone a sea change. 39. ............'l‘he principles of natural justice, as noticed hereinbefore, have undergone a sea change. In View of the decisions of this Court in State Bank of Patiala vi x l {AIR 1983 sc 454} \Qmoe) s soc 775) \\ \\ ‘ AS S.K.Sharma17 and Rajendm Singh v. State of MP.” the principle of law is that some real prejudica must have been caused to the complainant. The Court has shim‘d from its earlier concept that even a small violation shall result in the order being rendered a nullity. To the principle/doctrine of audi alteram partem, a clear distinction has been laid down between the cases Where there was no heating at all and the cases Where thele was mere technical infringement of the principle. ’I‘he Court applies the principles of natural justice having regani to the fact situation obtaining in each case. lt is not applied in a Vacuum without reference to the relevant facts and circumstances of the case. lt is no unruly hoxse. It cannot be put in a straitjacket formula. (See Viveka Nand Sethi v. Chairman, J&K Bank Ltd.” and State ofU.P. v. Neeraj Awasthi‘”. See also Mohd. Sartaj v. Smte of U.P.21) 41. It is not a case Where there had been a gross violation of principles of natural justice in the sense no disciplinary proceeding was initiated at all or no hearing was given.” 1 1. In the present case the petitioner was a Class-Ill employee, the charges levelled against him were specinc in terms. It is not the case of the petitioner that notwithstanding the request, he was not granted permission to take assistance of any retired or working employee. It is also not the case of the petih’oner that the findings recorded by the enquiry omcer are perverse. 12. rln the case Govt. of T.N. and others Vs. S. Vel Raj" , Their Lordships held that “the finding recorded by the Enquiry Omcer and connrmed by the appellate authority were based upon the evidence led during the enquiry and it was not even contended that the said findings were perverse. It was, 3 {(1997) 2 sec 708} p \ ® therefore, not open to the Tribunal to record conttaly tindjngs and hold that the charge against the respondent was not proved.” 13. On perusal of the tindings of the enquiring authority, it is found that there is no perversity in the enquiry report in support of the charges alleged and proved. The petitioner submitted his reply to the charge sheet dated 14.9.2001, along with a list ofwituesses and a list ofdocnments. After receipt of the reply of the petitioner, the enquiry offlicer was appointed During the course of deparmlental enquiry, the enquiry officer afforded proper opportunity to the petitioner to put forward his case. But, the petitioner did not choose to produce any Witness in his defence and had submitted only a medical certiiicate, as the document in his defence. The petitioner was given suilicient opportunity of hearing and even after the enquiry report was submitted, the petih’oner had filed his representation, which was considered and the dismissal order was passed after considering the representation of the petitioner to the enquiry report, thereon. The appellate authority has looked into all the contents of the appeal and held that the enquiry was conducted in a very impartial manner and full opportunity was aiiorded to the defence. The appellate authority also Considered that during the total service tenure of 14 years, the petitioner was awarded one major penalty and ten small penalties, which Were relating to unauthorizedly remaining absent horn duty/fleeing away, \ \\ \\ \ committing misconduct after taking liquor and remaining camless in keeping] using the arms provided to him. 15. The enquiry mport has been upheld by the disciplinaiy authOIity as well as the appellatc authority. This Court in exercise of its jun'sdicu‘on under Ar11'cle 226/227 of the Constitution of India should not intafem and re-appleciate the evidence to come to a ditfeient conclusion which may also be one of probable conclusions. The Hon’ble Supreme Court in the case of Kuldeep sing]: Vs. Commissioner of Police and others", held as under:— “9. Normally the High Court and this Court would not interfere with the findings of fact recorded at the domestic enquiry-but if the tinding of “guilt” is based on no evidence, it would be perverse finding and would be amenable to judicial scrutiny. 10. A broad distinction has, therefore, to be maintained between the decisions which axe perverse and those which are not. lf a decision is arm‘ved at on no evidence or evidence which is thomughly unreliable and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record Which-is I, “acceptable and which would be relied upon, howsoever compendious it may be, the conclusions would not be treated as perverse and the hndings would not be interfered with.” 16. In V. Ramona Vs. A.P. SRTC and otherss , Their Lordships observed as under:- “11. The common thread rimning through in all these decisions is that the court should not interfere with the administrator’s decision unless it was illogical or suhers “{(i999) 2 sec. 10} 5 5{(2005) 7 scc 338} from proceduml impropriety or was shocking to the conscience of the court, in the sense that it was in deflance of logic or moml standanis. In View of what has been stated in Wednesbmy case the court would not go into the conectness of the choice made by the administrator open to him and the coult should not substitute its decision for that of the administrator. The scope of judicialieview is limited to the deficiency in decision-making pmcess and not the decision.” 17. Applying the well settled principles of natural justice to the facts of the case, wherein there is no complain of any peiveisity, except the fact that the petitioner was not in a position to cross-examine the senior oiiicer in absence of assistance of an independent pexson, the enquiry is not viiiated. It is also not a case where prejudice has been caused to the petitioner, as the case ,is based on records and documents. The petitioner, despite opportunities granted to him, has failed to examine any witness to rebut the charges of remaining inebn’ated during duty hours and leaving the arms unattended on several occasions. This is not a case Where finding has been recorded de-horse the sunicient evidence and materials on records available. Thus, no interference is warranted. 18. For the reasons mentioned heminabove, the petition is a dismissed at motion stage. i ' Thnlmr Sd/- Sau'sh K. Agnihotn‘ i Judge