Judgment:
D.G.R. Patnaik, J.
1. Heard counsel for the parties.
2. The petitioner in this writ application, has prayed for the following relief (s).
i. For quashing the order dated 1.11.2002 (Annexure-7) passed by the Disciplinary Authority (Respondent No. 4) whereby, the petitioner was dismissed from service.
ii. For quashing the entire departmental proceeding initiated against the petitioner.
iii. For quashing the Appellate Order dated 13.05.2003 (Annexure-9) passed by the Appellate Authority (Respondent No. 3) whereby, by making a partial modification of the punishment of dismissal, the Appellate Authority has though recalled the order of dismissal, but reduced the punishment by way of reduction in lower rank of Sub-Inspector.
iv. For quashing the Revisional Order dated 26.8.2003 (Annexure-13) passed by the Revisional Authority whereby, petitioner's prayer for regularization of service has been rejected.
3. Facts of the petitioner's case in brief, are as follows:
The petitioner was appointed on the post of Sub Inspector in the year 1987 and he was deputed at Karo Check Post of Kargali Unit of CCL.
While he was on duty at the check post, he found that as many as 16 coal laden trucks belonging to the suspended coal lifting companies, had arrived at the check post for exit. The petitioner along with other co-security personnel who were posted at the check post, restrained the vehicles from going out of the gate. Later, the trucks were released and allowed to go out of the gate. On 15.5.2002, the petitioner was served with a Memorandum of Charge and he was called upon to submit his explanation to the charge. There were altogether three charges. The first charge was that while he was posted at the Karo check post, despite receipt of intimation about the suspension of the Coal Companies, he had allowed the coal laden trucks of the six suspended coal companies to leave the premises of the CCL without obtaining prior permission from the Sales Department of the CCL. The second charge was that he had prevailed upon the Sales Officer of the CCL to issue a letter/order for release of the vehicles. The third charge was that he had failed in containing theft of coal from the CCL coal inclined area and thereby demonstrated negligence in performance of duty.
4. In reply to the charges, the petitioner had stated that on the receipt of the information regarding the suspension of the coal lifting companies, he had promptly stopped the coal laden trucks of these companies from going out of the CCL premises and had sought guidance in the matter not only from his superior in office, but also from the Sales Officer of the CCL and that, it was on the basis of the instruction of his superior officer (PW3) and that of the Sales Officer (CW1), that he had allowed the trucks to be released since it was informed that the trucks were loaded with coal even prior to the date of passing of the order of suspension of the Coal Lifting Companies and payments of the coal were already received by the CCL Sales Department.
5. In the disciplinary inquiry, quite a few witnesses, both by the prosecution as well as from the side of the defence, were examined. After considering the evidences, the Inquiry Officer had recorded his findings that the charge No. 1 was fully proved and that, the remaining two charges were partially proved.
On the basis of the findings of the inquiry Officer, the Disciplinary Authority, after supplying a copy of the Inquiry Report to the petitioner and after calling upon him to submit his explanation as to why a major punishment should not be awarded, had proceeded to pass the order of dismissal of the petitioner from service by his order dated 1.11.2002 (Annexure-7).
The petitioner preferred thereafter, an appeal against the order of his dismissal, before the Appellate Authority.
The Appellate Authority, by his impugned order dated 13.05.2003 (Annexure-9), dismissed the appeal though modifying the punishment in as much as, while recalling the order of dismissal, he reduced the petitioner to the lower rank of Sub Inspector for three years.
The petitioner thereafter preferred a revision against the order of the Appellate Authority, which was also dismissed by order dated 26.8.2003 (Annexure-13)
6. The petitioner has assailed the findings recorded by the Enquiry Officer and the order of his dismissal passed by the Disciplinary Authority as also the order of the Appellate Authority and the order of the Revisional Authority basically on the ground that the findings in the Inquiry Report which have been relied upon by the Disciplinary Authority and the Appellate and Revisional Authority is perverse, against the weight of evidence on record and without proper application of judicial mind and also without considering the evidence in proper perspective.
7. Shri Rajiv Ranjan, learned Counsel for the petitioner, would elaborate the grounds by referring first to the evidence of the witnesses, in particular, the evidence of Girish Tiwari (PW3) who is the Deputy Commandant and that of the Sales Officer, namely, B.P. Yadav (CW1). By reading out the show-cause reply/explanation offered by the petitioner in response to the Memorandum of Charge, and comparing the same with the statement of the PW3 and CW1, learned Counsel submits that the petitioner had categorically stated that he had stopped the vehicles from going out of the company's premises and had sought appropriate guidance and instruction from his superior officer and also from the Sales Officer and that, when the Sales Officer had clarified that the trucks had entered into the CCL premises prior to the date of passing of the order of suspension of the coal lifting companies and that the vehicles loaded with trucks have been weighted and payment of the coal loaded on the vehicles have been made, there was no need for restraining the vehicles and also on the instruction of the Superior officer to act accordingly, the petitioner had released the vehicles. The petitioner had also pleaded that the Sales Officer on his arrival at the Check post at 9.00 P.M. had voluntarily issued a written order for release of the vehicles. These statements of the petitioner have been categorically affirmed and find support from the statements of PW3 who is the Deputy Commandant and the superior officer from whom the petitioner had obtained instruction before releasing the vehicles and from the evidence of CW1, the Sales Officer who had deposed that he had voluntarily issued instruction for releasing the coal laden vehicles. Reading further, the statements of the Sales Officer (CW1), learned Counsel submits that this witness had categorically declared that though, he had instructed the petitioner orally that, since the price of the coal loaded on the detained vehicles have already been received, there was no need to restrain the vehicles and that, after his arrival at the check post, he was requested by the security personnel at the check post to give the statement in writing for the purpose of record and to enable release of the vehicles. This witness has though named as many as four of the security personnel claiming that they had requested him to issue the release order in writing, but had conspicuously not named the petitioner as amongst the persons who had requested him to issue instruction in writing. Learned Counsel argues that in the light of the supportive evidence of CW1 and PW3, it would be manifest that the petitioner did not release the coal laden vehicles of the suspended coal lifting companies on his own. Rather, such release was made firstly on the instruction of the superior officer namely, the Deputy Commandant (PW3) and secondly, on the instruction of the Sales officer (CW1) and as such, the petitioner could not be found fault by allowing release of the vehicles. Learned Counsel argues that on this score alone, the first and second charge should have been declared as not proved against the petitioner.
Referring to the purported evidence relating to the third charge, learned Counsel reads out again the statements of the witnesses including the evidence of the other security personnel, all of whom have categorically stated that it was the petitioner who had substantially brought down the incidents of theft of coal and that, it was the collective responsibility of the security personnel to contain the theft of coal from being committed. Learned Counsel also refers to the certificates of commendation issued to the petitioner, both by the Chief General Manager, CCL as also by the Area Commander, who while commending the petitioner's work performance, have also awarded him.
8. Counsel for the respondent Union of India, on the other hand, offers argument in support of the impugned orders of the Disciplinary Authority and that of the Appellate Authority and Revisional Authority and also offers support in favour of the findings of the Inquiry Officer.
9. As a normal rule, the High Court in its powers under Article 226 of the Constitution of India, could not generally interfere with the findings recorded in the departmental proceeding by the Disciplinary Authority or by the Inquiry Officer. The Court cannot sit in appeal to decide over those findings and assume the role of the Appellate Authority. But this, in itself, would not lay down absolute bar for judicial review of the findings recorded in the departmental inquiry.
As has been explained in the case of the Kuldeep Singh v. Commissioner of Police and Ors. : (1999) 2 SCC 10, findings in a disciplinary proceedings are not normally to be interfered with, yet the court exercising writ jurisdiction can interfere if the same is based on no evidence or is such as could not be reached by an ordinary prudent man or is perverse or is made on the dictates of a superior authority.
The Apex Court has also observed that the disciplinary proceedings before a domestic tribunal are of quasi judicial character and therefore, it is necessary that the Tribunal should arrive at its conclusion on the basis of some evidence, that is to say, such evidence which, with some some degree of definiteness, points to guilt of the delinquent and does not leave the matter in a suspicious state. Mere suspicion cannot take the place of proof even in domestic enquiries.
10. While conceding the fact that the punishment as imposed against the petitioner constitutes major punishment, learned Counsel for the respondents submits that the findings of the Inquiry Officer are based on the evidence on record and before arriving at his findings, the Enquiry Officer as also the Disciplinary Authority had given adequate and reasonable opportunity to the petitioner to defend his case. Learned Counsel argues further that since concurrent findings on facts have been recorded by the Enquiry Officer and that Disciplinary Authority and even by the Appellate Authority, this Court, in exercise of its writ jurisdiction, cannot be called upon to go into and decide upon the facts as an appellate court.
11. I have heard learned Counsel for the parties and have also gone through the Inquiry report and the findings contained therein as also the impugned orders of the Disciplinary Authority, Appellate Authority and the Revisional Authority. I have gone through the evidence of the witnesses and the explanation offered by the petitioner in his defence against the charges and other documents available on record.
It appears that the petitioner had taken a specific defence that after detaining the coal laden vehicles, he had obtained instruction from the superior in office as also from the Sales Officer of the CCL and on the basis of the instruction received, he allowed the vehicles to go out of the premises. This stand of the petitioner has been amply supported by the Deputy Commandant (PW3) who is the petitioner's superior in office and from whom the petitioner had obtained instruction regarding the detention or otherwise of the coal laden vehicles and there is evidence also of the Sales Officer (CW1) who has affirmed that a telephonic instruction was sought by the petitioner as to whether the detained trucks should be released or not and that, he had informed the petitioner that the trucks need not be detained on account of the fact that the price of the coal loaded on the truck, has already been received by the company. The Sales Officer has also affirmed that he had given written instruction, though on the request of the security personnel other than the petitioner.
12. The Inquiry Officer has though reproduced the statement of the witnesses, but while recording his findings and conclusion, appears to have ignored these aspects of the statements of the witnesses which offers support to the petitioner's defence. No reason has been assigned by the Inquiry Officer as to why the part of the statements of the witnesses which were in favour of the petitioner, have been ignored and neither has any reason been given for disbelieving the same.
It is apparent that the findings of the Inquiry Officer are not based on the evidence on record in its entirety. The finding of guilt against the petitioner, has therefore to be deemed as perverse, being not in consonance with the weight of evidence.
13. From the impugned order of the Disciplinary Authority as also that of the Appellate Authority and the Revisional Authority, I find that all these authorities have merely adopted the findings of the Inquiry Officer without adverting to the significant and relevant aspects of the evidence of the witnesses which have been highlighted by the petitioner. This would only demonstrate that the concerned authorities, by passing the impugned orders, have neither applied their judicial mind, nor considered the matter in proper perspective. Under the circumstance, this Court would not hesitate to invoke its writ jurisdiction to interfere with the impugned orders.
14. I am satisfied from the above discussions that the findings in the Enquiry Report as also those in the impugned orders of the Disciplinary Authority and the Appellate Authority and that of the Revisional Authority, are perverse resulting in injustice to the petitioner. Under the circumstances, I find merit in this writ application. Accordingly, this writ application is allowed. The impugned orders as contained in Annexure-7, Annexure-9 and Annexure-13, are hereby set aside.