Union of India (Uoi) and ors. Vs. Saied Meera - Court Judgment

Dipankar Datta, J.

1. Since facts in these two applications under Article 226 of the Constitution of India are identical and they are directed against the common judgment dated 23rd December, 2005 passed by the Central Administrative Tribunal, Calcutta Bench (Circuit at Port Blair) in O.A. Nos. 59/AN/2004 and 60/AN/2004, the same were heard together and are being disposed of by this common judgment.

2. By separate memorandum dated 13th March, 2002, the applicants before the Tribunal being the respondents in the two writ applications were chargesheeted. The article of charge reads as follows:

Article-I

That PC/1999 Saied Meera, PC/1973 Lawrence Robert and PC/1084 J.J. Edward, while posted to RPRS, guard at Campbell Bay, consumed liquor alongwith a woman namely Smt. Bali Devi, w/o Shri Jaggu Badaik (30) R/o Nehru Colony, Campbell Bay and when Smt. Bali Devi was fully under drunken state all of the aforesaid Police Constables indulged in sexual intercourse with her in the guard room (restricted area) in the forenoon of 20.01.2002.

That their such immoral conduct with Smt. Bali Devi is considered conducive to the indiscipline and constitutes grave misconduct and misbehaviour on their part, thereby unbecoming of the members of disciplined Police Force, rendering them liable for punishment under Rule 9-3 of A & N Police Manual, 1963.

3. Upon receipt of the chargesheet, the petitioners denied having indulged, in immoral conduct, as alleged. An enquiry followed. Before the Enquiry Officer, Smt. Bali Devi was produced as a witness for the prosecution. The English translation of her evidence in Hindi before the Inquiry Officer, as has been handed over to this Court by learned Counsel for the petitioners, in its entirety is quoted below:

I reside alongwith my husband and two children at Babu Line in my own house and my husband is a labour under Mr. Grewal, a contractor. On 20.1.2002 while I was going for work, I met RPRS guard PC 1999 Saied Meera at 07.00 hrs. in the main gate of RPRS. I have brotherly relation with Shri Saied Meera. While we were talking, two officers, whom I don't know, came from inside the RPRS guard and found me in conversation with said PC 1999 Saied Meera. After some time I left for my house. On 5.2.2002, I was called by ASIRN Mishra in the police station to record my statement in the statement, I have stated that PC 1999 Saied Meera, PC 1973 Lawrence Robert and PC 1084 J.J. Edward have indulged in sexual intercourse with me, which has been recorded by ASI RN Mishra, which is not true because PC Saied Meera, PC JJ. Edward and PC Lawrence Robert have neither committed any wrong nor I entered in guard room.

4. In the substance of imputations in support of the article of charge framed against the respondents, it was alleged as under:

Article-I

***'***When Smt. Bali Devi was fully in a drunken state, PC/1999 Saied Meera locked the door of guard room and indulged in sexual intercourse with her. Thereafter, PC/1084 J.J. Edward and PC/1973 Lawrence Robert also indulged in sexual intercourse with Smt. Bali Devi. After that when Shri S. Pillai, one of the staff of RPRS all of a sudden entered the guard room, he found a Woman lying on the charpoy in a drunken state. In the meantime PC/1999 Saied Meera came from bathroom in naked state. ******

5. At this stage it would be worthwhile to note the deposition of said Shri V.S. Pillai in the enquiry relevant portion of which is quoted below:

I have been posted at RPRS Campbell Bay since 9.10.2001. On 20.1.2002. when was returning from morning walk, I found PC 1999 Saied Meera was present at Sentry post and inside the sentry post a lady was sitting. I informed cook Durai Raj about the same and asked him to keep a watch on the said lady, and I went to my room for getting ready for office.

6. It is also to be noted that at no point of time after commission of the alleged offences by the respondents, medical examination of the respondents as well as of Smt. Bali Devi were conducted.

7. There was no direct evidence that the respondents herein had consumed liquor and under influence thereof and taking advantages of the drunken state of Smt. Bali Devi, had violated her.

8. Despite such position on facts, the Inquiry Officer held as follows:

During the course of departmental inquiry the prosecution witnesses namely Shri M. Durai Raj, S/o Muthusanan (52), Cook, RPRS, Shri V.S. Pillai, S/o Vellu Kutty (41), Driver, SFA RPRS Campbell Bay, Shri R. Govind Raju, S/o Late Ranga Raju (35), Dy. Field Officer RPRS, Campbell Bay, ASI R.N. Mishra of PS Campbell Bay, HC/335 Livingston I/C RPRS guard, Campbell Bay have disclosed that the three charged constables (under suspension) consumed liquor in the RPRS Guard Room on 21.1.2002 and presence of Smt. Bali Devi in the RPRS guard has also been established during the relevant period.

On the basis of documentary and oral evidence adduced in the case before me and in view of the reasons given above, I hold that charges mentioned against PC 1999 Saied Meera, PC/1973 Lawrence Robert, PC/1084 J.J. Edward (Under Section) stand proved.

9. The disciplinary authority after receipt of report of the Enquiry Officer, while tentatively agreeing with his findings called upon the respondents to show-cause as to why penalty of dismissal from service shall not be inflicted on them. The respondents showed cause. However, the cause shown did not appeal to the disciplinary authority and he dismissed the respondents from service by a common order dated 5th June, 2003.

10. The respondents carried the orders of dismissal in appeal before the appropriate appellate authority. However, the appeals failed and the orders of dismissal were confirmed by a common order dated 25th September, 2003.

11. The disciplinary proceedings which were initiated against the respondents culminating in their service being terminated including the orders of dismissal as well as the appellate orders were subjected to challenge by the respondents by filing separate applications before the learned Tribunal. Upon hearing the parties and upon due consideration of the materials presented before it, the learned Tribunal concluded as follows:

The disciplinary authority in his order dated 5.6.03 states as follows:

The evidence gathered during the preliminary inquiry cannot be ignored and set aside altogether. During the regular departmental inquiry proceedings too much circumstantial evidence has come on record and the same is sufficient to lead to the logical and convincing conclusion that the delinquents were guilty of the charge framed against them.

This order cannot be sustained for the further reasons that this order relies on the preliminary enquiry report and the circumstantial evidence. This circumstantial evidence have not at all been disclosed by the disciplinary authority in his order.

From a perusal of the appellate order dated 25.9.03 it is seen that there was no independent, consideration on merits. The appellate authority had observed that he had found that the documentary and oral evidence brought on record sufficiently proved the charge in question which was in serious nature involving moral turpitude on the part of the appellant. Here also we do not find any application of mind on the grounds raised by the applicants in the appeal.

Thus, we find that the disciplinary authority and the appellate authority have not independently considered the grounds to sustain the charges. There are no direct or indirect or circumstantial evidence to hold that the allegation contained in the charge memo was established. We further find that there was total non-application of mind to the grounds raised by the applicants. Thus, both on factual and legal grounds we find that the order of the disciplinary authority dismissing the applicant and the appellate authority's order confirming the dismissal of the applicant are unsustainable and they are liable to be set aside. They are accordingly set aside. As the framing of charge was justified on the basis of preliminary enquiry and the same is not now found established, the applicants are entitled to be reinstated into service without back wages with notional pay-fixation and continuity of service. The OAs are allowed accordingly. No order as to costs.

12. Mr. Mondal, learned Counsel for the petitioners has assailed the impugned judgment on various grounds. He has invited the attention of this Court to the deposition of Head Constable Livingston and has submitted that his deposition was sufficient for the disciplinary authority to come to a finding that the respondents were guilty of the misconduct alleged against them. The portion of the deposition of Head Constable Livingston, on which reliance has been placed by him, is quoted below:

I am posted as Head Constable guard in charge RPRS, Campbell Bay since last two years two months alongwith PC 1084 J.J. Edward, PC 1999 Saied Meera, PC 2000 Harmon Minj and PC 1973 Lawrence Robert, I used to depute them in the main gate of the RPRS guard for a period of 3 hours turn by turn 24 hours a day with strict instructions. On 20.01.2002, I returned to the RPRS guard with my family at 21.00 hrs. from the house of the father of the Church Shri Kuliean Jewel. When I returned to guard, PC 1084 J.J. Edward was on sentry duty at main gate and he told me that PC 1999 Saied Meera had brought a Ranchi Lady to the guard room and the three of them, i.e. PC 1999 Saied Meera, PC 1084 J.J. Edward, PC 1972 Lawrence Robert had enjoyed with the said Ranchi lady. At that relevant point of time driver Pillai has seen them and informed about the same to the cook Durai Raj. The cook Durai Raj later on told us that RPRS saheb has called all three of us due to which we became frightened and did not go to meet RPRS saheb (Shri R. Govind Raju).

13. It is his contention that the materials-on-record were sufficient to arrive at the finding that the respondents were guilty of misconduct and the learned Tribunal re-appreciated the evidence adduced, which was impermissible in judicial review. It is his further contention that the disciplinary authority is the sole Judge of facts, and the view taken by the disciplinary authority in this particular case being relatable to the evidence on record, interference was not called for. It has also been submitted by him that the respondents were members of a disciplined force to whom the society looks forward as the protector of law, and if such members of the disciplined force indulge in gross immoral conduct while on duty, they are not entitled to be retained in service. As such, it is contended that the penalty imposed upon each of the respondents was appropriate in the facts and circumstances.

14. In support of his submissions, learned Counsel has relied upon several decisions of the Apex Court, which are listed below:

(1) : AIR1997SC2148 : Narayan Dattarya v. State of Maharashtra and Ors., for the proposition that 'Defect in preliminary enquiry does not vitiate a full-fledged enquiry';

(2) : [1997]3SCR803 : High Court of Judicature at Bombay v. Uday Singh, for the proposition that 'Preponderance of probabilities and conclusion drawn as a reasonable man from evidence on record is sufficient for the purpose of departmental enquiry';

(3) : 2000(67)ECC16 : High Court of Judicature at Bombay v. Sashikant S. Patil and Anr., for the proposition that 'Disciplinary authority is the sole Judge of facts if the enquiry has been properly conducted';

(4) 2004(13) SCC 117: State of U.P. and Ors. v. Harendra Kumar., for the proposition that 'Disciplinary authority agreeing with the enquiry authority need not write a detailed judgment';

(5) : AIR2006SC1246 : Commissioner of Police and Ors. v. Syed Hussain, for the proposition that 'where a misconduct is committed by a person who holds a position of trust and whom the society looks forward as a protector of law as member of police force his dismissal from service is proper';

(6) : (2006)IIILLJ563SC : SBI and Ors. v. Ramesh Dinkar Punde, for the proposition that 'Evidence considered by Enquiry Officer, disciplinary authority and appellate authority is the best evidence and reappreciation by Court/Tribunal impermissible';

(7) 2006(7) SCC 558 : Om Prakash Mann v. Director of Education and Ors., for the proposition that 'No ground taken by the delinquent that chargesheet was vague and no effective reply given to the charges and delinquent also participated in the disciplinary proceedings without demur in such case delinquent is estopped from raising such issue before Court';

(8) : (1996)ILLJ1231SC : B.C. Chaturvedi v. UOI and Ors., for the proposition that 'Tribunal/Court should not interfere with the findings of the disciplinary authority and appellate authority'.

15. He next contended that apart from the charges that were levelled against the respondents, they were also guilty of permitting a rank outsider to enter into a restricted area, and of insubordination inasmuch as when summoned by the superior officer R. Govind Raju, they refused to respond. He concluded by submitting that the learned Tribunal having approached the issue raised as if it was sitting in appeal over the decisions of the disciplinary and the appellate authorities, its judgment stands vitiated and interference in the present case is called for.

16. Per contra, Mrs. Nag, learned Counsel for both the respondents supported the judgment of the learned Tribunal. She has invited the attention of this Court to the relevant portion of the findings of the Inquiry Officer, and the orders of the disciplinary and the appellate authorities (which have also been extracted in the impugned judgment) to demonstrate that much reliance has been placed by the said authorities on the report of preliminary inquiry, which was impermissible having regard to the fact that a full fledged departmental inquiry had been initiated. She has also referred to the deposition of Smt. Bali Devi extracted supra and has submitted that her deposition together with absence of any medical examination having been conducted on the person of the respondents as well as Smt. Bali Devi immediately after the authorities came to learn of the alleged incidents giving rise to the charge, clinches the issue in favour of the respondents. Accordingly, she has prayed for dismissal of the writ petition.

17. The question that arises for determination in the present case is whether on the facts presented before it, the learned Tribunal was justified in returning the findings that there was no evidence to sustain the charges levelled against the respondents and that the disciplinary and appellate authorities failed to address the issues raised before them with proper application-of mind.

18. This Court is in agreement with learned Counsel for the respondents that the charge framed against them, on the basis of the available evidence, cannot be said to have been proved. There was no direct evidence that the respondents had consumed liquor and under influence thereof and taking advantage of the drunken state of Smt. Bali Devi, had violated her. If medical examination had been conducted on the person of the respondents and Smt. Bali Devi, the report would definitely have suggested whether they were under the influence of liquor or not and whether she was subjected to physical intercourse or not, not once but thrice within a short span of time. The failure of the departments authorities to get the respondents and Smt. Bali Devi medically examined and the very deposition of Smt. Bali Devi denying the complicity of the respondents proved fatal for the prosecution case. There is no legal evidence which could link the respondents with the alleged offences except the deposition of Head Constable Livingston, who stated that one of the respondents Shri. J.J. Edward had admitted before him that he alongwith two others had enjoyed with the lady. In the absence of further clarification, what the phrase 'had enjoyed with the said Ranchi lady' connotes is difficult to decipher and on the basis of such statement of the prosecution witness, findings of guilt could not have been returned. Although, the provisions of the Evidence Act are not applicable in domestic enquiry and the standard of proof in such enquiry is also different, even then it is settled law that surmises and conjectures cannot be substituted for proof even in a domestic enquiry. This Court is ad idem with the learned Tribunal that the prosecution could not establish the charges framed against the respondents based on the evidence led in the inquiry.

19. The decisions relied on by learned Counsel for the petitioners have been looked into. The propositions laid down therein cannot be disputed. However, it is necessary to examine as to whether the fact situation of the present case fits in with the facts of the particular case that is relied on. A decision is an authority for what it decides and not what can logically be deduced therefrom, is settled law. This Court is of the firm opinion that the facts of the present case and the facts of the reported cases differ in material particulars and blind reliance cannot be placed on the ratio laid down therein. In the considered view of this Court, it is open for the Writ Court while judging the correctness, validity and propriety of the decision taken by an authority acting in quasi-judicial capacity to examine the facts of a particular case, to a limited extent, for ascertaining as to whether the decision making process suffers from the vices of illegality, irrationality and procedural impropriety or not. Reference in this connection may be made to the decision of the Apex Court reported in 2006(4) SCC 714, State of U.P. v. Johri Mal. Paragraph-30 of the said decision being relevant here, is quoted below:

It is well-settled that while exercising the power of judicial review the Court is more concerned with the decision making process than the merit of the decision itself. In doing so, it is often argued by the defender of an impugned decision that the Court is not competent to exercise its power when there are serious disputed questions of facts; when the decision of the Tribunal or the decision of the fact finding body or the arbitrator is given finality by the statute which governs a given situation or which, by nature of the activity the decision-maker's opinion on facts is final. But, while examining and scrutinising the decision making process it becomes inevitable to also appreciate the facts of a given case as otherwise the decision cannot be tested under the grounds of illegality, irrationality or procedural impropriety. How far the Court of judicial review can reappreciate the findings of facts depends on the ground of judicial review. For example, if a decision is challenged as irrational, it would be well-nigh impossible to record a finding whether a decision is rational or irrational without first evaluating the facts of the case and coming to a plausible conclusion and then testing the decision of the authority on the touchstone of the tests laid down by the Court with special reference to a given case. This position is well-settled in the Indian Administrative Law. Therefore, to a limited extent of scrutinising the decision-making process, it is always open to the Court to review the evaluation of facts by the decision-maker.

20. In the present case the ground for judicial review of the punitive action taken against the respondents was that there was no evidence based whereon a reasonable person could reach the conclusion which the departmental authorities reached. It is thus necessary, in view of the law laid down in Johri Mal (supra), to ascertain whether there was any evidence to link the respondents with the alleged misconduct. In this pursuit, it becomes absolutely necessary to look into the evidence and to find out what the facts are and whether the decision arrived at, on such facts is perverse or not. This, the Writ Court exercising judicial review of administrative action in discharge of functions, is empowered to look for. Not having found legal evidence on record, be it direct or circumstantial, which suggests consumption of liquor by the respondents while on duty, alluring the said lady to drinks and then violating her in succession, this Court is unable to agree with the contention advanced by learned Counsel that there were sufficient evidence on record forming basis of their conviction.

21. This Court has also considered the submission of Mr. Mondal, learned Counsel for the petitioners that in course of preliminary inquiry, the delinquent constables had admitted their guilt. That admission is the best piece of evidence against the person making the admission is well-settled principle of law. However, it is always open to the person making the admission to show why the admission is not to be acted upon. In the present case after chargesheet was issued against the respondents they had not admitted the charges; on the contrary, they had denied the same. At no stage of the proceedings was there any admission of guilt on their part. The alleged admission in course of preliminary inquiry could not therefore be acted upon in course of the regular departmental inquiry, where the prosecution failed to establish the charges against the respondents.

His further submission that the respondents committed indiscipline by permitting Smt. Bali Devi to enter into a restricted area and misconduct of insubordination by not responding to the call of a superior officer cannot also be accepted since the respondents were not charged for commission of such offences.

22. For the reasons aforesaid, this Court finds no reason to interfere with the judgment rendered by the learned Tribunal. The writ petitions fail and are dismissed. There shall be no order as to costs.

23. It appears that while admitting the writ application, the Court had not stayed the order of the learned Tribunal, yet, the petitioners did not reinstate the respondents in service. While maintaining the directions passed by the learned Tribunal in the concluding paragraph of the judgment, this Court directs that the respondents shall be entitled to full salary from date of the learned Tribunal's judgment and the same be released within four weeks from date of receipt of a copy of this judgment.

24. Before parting, this Court is constrained to express its dissatisfaction in regard to the utter negligence and carelessness on the part of departmental authorities in not conducting medical tests on the person of, the respondents as well as Smt. Bali Devi, for those medical reports would have paved the way for establishing the facts alleged, if the respondents had really consumed liquor while on duty and further, if the said lady was in a drunken state, and was violated by the respondents in such state. The facts as alleged in the chargesheet are ugly, to say the least. The conscience of the Court does not permit to leave the issue to rest. The respondents are the members of a disciplined force. They are the protectors of law as well as of the citizens. They are supposed to be maintain a high degree of integrity and discipline. Having regard to the facts presented before this Court, if some further order or direction is not passed, that would surely send a very wrong message not only to the other members of the disciplined force to which the respondents belong, but also to the society at large. There is some dispute as to whether the said lady was allowed to center in the police guard or not. The version of the lady is that she met respondent Saied Meera in the main gate while he was going for work and had not entered the guard room. However, the other version, appearing from the deposition of some of the prosecution witnesses is that she was found in the guard room. There is also some evidence-on-record which, prima facie, may give rise to an allegation of insubordination by the respondents. If it be a restricted area, whether an outsider like the said lady could be allowed entry and further as to whether she had actually entered the restricted area, and whether there was insubordination on the part of the respondents are the issues which the departmental authorities would be at liberty to examine and if they so choose, they would be at liberty to proceed afresh against the respondents, only in respect of these two issues, in accordance with law. However, it is made clear that this liberty can be availed after complying with the directions contained in the preceding paragraph.

25. Urgent xerox certified copy of this order, if applied, be furnished to the applicant at an early date.

Ashim Kr. Banerjee, J.

26. I agree.