Non-Reportable
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 2148 of 2015
CENTRAL INDUSTRIAL SECURITY FORCE & ORS.
.... Appellant(s)
Versus
ABRAR ALI
….Respondent
J U D G M E N T
L. NAGESWARA RAO, J.
The Respondent was appointed as a Constable in Central Industrial
Security Force (CISF) on 10.09.1990. By a memorandum dated 08.10.1999, an
inquiry was proposed under Rule 36 of the C.I.S.F. Rules, 1969 for
allegations of misconduct and misbehavior for the following Charges:
“Article of Charge-I
No.903190893, Ct. Abrar Ali, Area No. IV, Central Industrial
Security Force, BCCL Unit, Dhanbad was granted 2 days casual leave from
12.08.1999 to 13.08.1999 and 14.08.1999 was a second Saturday. He had to
resume his duty on 15.08.1999 (F/N). But, he reported for his duty at 1730
hrs. Thereafter, Asstt. Commandant of Area No. 4 directed the said Abrar
Ali to remain inside the Camp as there was apprehension of danger to his
life from the residents of nearby Basti. At about 1900 hrs when Abrar Ali
was searched by C.H.M. to serve his suspension order, he was again found
absent from the Camp. The said member of the force did not even deposit
his leave Certificate in the Unit Office after coming back from leave.
Therefore, Abrar Ali No.903190893 being a member of armed forces, is
grossly negligent towards his duties and has disobeyed the
Orders/directions of the Superior Officers, which amounts to gross
misconduct and indiscipline on the part of the said member. Hence, this
Charge.
Article of Charge-II
No.903190893, Ct. Abrar Ali, Area No. IV, Central Industrial
Security Force, BCCL Unit, Dhanbad was granted 2 days casual leave from
12.08.1999 to 13.08.1999 and 14.08.1999 was a second Saturday. The said
member of the force while proceeding on leave took one girl named Anita
Kumari D/o Shri Rajendr Rajbar R/o Lalten Basti, Angarpathra (Dhanbad),
aged about 15-16 years with him to Delhi on the pretext of getting her
married to a Hindu boy and come back after leaving the said Anita Kumari at
the house of an old man. The brother of the said force member, Jamaruddin,
who also is a member of the Delhi Armed Police took Anita Kumari to
Dhanbad. On 20.08.1999, Anita Kumari made a statement before the Judicial
Magistrate, Dhanbad, in FIR No.260/99 dated 13.08.1999. Thereafter, the
said force member Abrar Ali surrendered in the Court of C.J.M., Dhanbad on
20.08.1999 from where he was sent to jail for committing the said offence.
No. 903190893 Ct. Abrar Ali being a member of me force has committed an act
of indiscipline and has maligned the image of the force, which is a serious
misconduct. Hence, this Charge.
Article of Charge - III
Ct. Abrar Ali No. 903190893, Area No.IV, Central Industrial
Security Force, BCCL Unit, Dhanbad, has already been awarded three
punishments, 2 major punishments (deduction in pay) and one minor
punishment (deduction of 7 days’ salary) for various acts of indiscipline
and negligence during the short span of his service. Despite the
aforesaid, he has failed to improve himself and to abide the rules, which
shows that the said member is habitual of committing indiscipline. Hence
this Charge.
The Commandant, Central Industrial Security Force, BCCL Unit, Dhanbad by a
final order dated 28.11.2000 held the Respondent guilty of all the Charges.
Finding the Respondent unworthy of retention in Force due to his acts of
indiscipline and misconduct, the Disciplinary Authority dismissed the
Respondent from service. Aggrieved by the Order of dismissal, the
Respondent filed an appeal to the Deputy Inspector General, Central
Industrial Security Force, BCCL Unit, Dhanbad. The Appellate Authority
rejected the appeal by Order dated 01.02.2001. The Respondent was
exonerated of Charge 2 and held guilty of Charges 1 and 3. The Revision
Petition filed by the Respondent was dismissed by the Inspector General,
E.S. Headquarters, Patna by an Order dated 31.12.2010. The punishment of
dismissal from service imposed on the Respondent was found to be
proportionate to the gravity of the misconduct by both the Appellate and
Revisional Authorities. The Respondent filed Writ Petition no. 1241 of
2001 in the High Court of Delhi challenging the Order of dismissal dated
28.11.2000 as well as the Orders dated 01.02.2001 of the Appellate
Authority and 31.12.2010 of the Revisional Authority. By its judgment
dated 11.08.2014, the High Court of Delhi allowed the Writ Petition and
directed the Respondent to be reinstated forthwith as Constable C.I.S.F.
with notional seniority in his rank. There was a direction for payment of
the entire arrears of his salary and other allowances within 2 months from
the date of the judgment. The Respondent was also held entitled for costs
quantified at Rs. 15,000/-. Aggrieved by the said judgment dated
11.08.2014 of the High Court of Delhi, the Appellants preferred this
Appeal.
Mr. Yashank Adhyaru, learned Senior Counsel appearing for the Appellants
submitted that the Order of dismissal ought not to have been interfered
with by the High Court in exercise of its jurisdiction under Article 226 of
the Constitution of India. He further submitted that there is no bar of
holding a departmental inquiry in spite of an acquittal by a Criminal
Court. The past conduct of the delinquent employee could, still, be a
subject matter of a Disciplinary Proceeding. He contended that the penalty
of dismissal from service is proportionate with the delinquency.
Dr. L.S.Chaudhary, Advocate appearing for the Respondent submits that the
Respondent was acquitted by the Criminal Court and he should not have been
tried for the same Charge by way of a departmental inquiry. He also relied
upon a judgment of this Court in G.M. Tank v. State of Gujarat & Ors.,
reported in (2006) 5 SCC 446 in support thereof. He further submitted that
Charge No. 1 did not warrant a penalty of dismissal and penalizing the
Respondent for Charge No. 3 would amount to double jeopardy.
The relevant facts for adjudication of this case are as follows:
The Respondent was appointed as a Constable in C.I.S.F. on
10.09.1990. While working at C.I.S.F., BCCL Unit, Dhanbad, he was granted
casual leave for 2 days on 12.08.1999. On 13.08.1999, FIR No. 260/99 was
registered under Section 366 A and 376 of the Indian Penal Code, 1860 in
Katras Police Station on a complaint by the residents of Lalten Basti that
the Respondent kidnapped Anita Kumari, a minor girl. The Respondent
reported back to duty at 1730 hrs on 15.08.1999. He was informed by the
Assistant Commandant that there was danger to his life from the people
living in Lalten Basti and he was ordered to remain in the unit lines. He
was not found in the unit lines at 1900 hrs on 15.08.1999 when a suspension
order was sought to be served on him. The authorities were informed that
the Respondent surrendered before the Officer-In-Charge of Angarpathra
Police Station at around 2000 hrs on 20.08.1999. Though the victim Anita
Kumari made a statement which was recorded under Section 164 Cr. P.C. by
the Magistrate, she retracted from the statement in the trial. The other
witnesses were declared hostile. The Respondent was acquitted of the
Charges under Section 366 A and 376 IPC by a judgment dated 29.03.2001 of
the Sixth Addl. Sessions Judge, Dhanbad.
The point that arises for our consideration is whether the finding of the
Disciplinary Authorities holding the Respondent guilty of Charges 1 and 3
was justified and whether the penalty of dismissal was proportionate.
Charge No.1 pertains to the act of indiscipline of the Respondent in
leaving the unit line on 15.08.1999 in spite of a specific order. There is
evidence on record to show that the Respondent reported for duty at 1730
hrs on 15.08.1999 and disappeared thereafter in spite of instructions not
to leave the unit line. Even according to the Respondent, the situation
was tense and there was danger to his life from the residents of the Basti
who lodged FIR against him. The Respondent submitted in the departmental
inquiry that he did not resume duty on 15.08.1999 after being informed
about the registration of FIR. He further stated that he fell ill and was
taking treatment from a local doctor from 15.08.1999 to 20.08.1999 at
Tutalmari. He surrendered before the Police at 2000 hrs on 20.08.1999. The
Respondent’s brother Jamaruddin, who is a member of Delhi Police Force, was
examined as PW-9 and Kaniz Fatima, wife of the Respondent was examined as
PW-2. They supported the version of the Respondent that he availed leave
for two days, did not resume duty in view of the registration of FIR and
that he surrendered before the Criminal Court on 20.08.1999. PW-8 Bijender
Singh, HC/GD deposed before the Inquiry Officer that the Respondent was
directed by the Assistant Commandant, Ansuman Gaur, to stay in the unit
line. He was asked to serve a copy of the suspension order on the
Respondent at 1900 hrs. on 15.08.1999. However, the Respondent was not
traceable in the camp or at his official residence. Court Witness No.1, SB
Mishra, Inspector stated in the departmental inquiry that he was the
Company Commander who granted leave for two days to the Respondent on
11.08.1999. He deposed that officer-in-Charge of Angarpathra Police
Station visited him at 1200 hrs. on 12.08.1999. The officer informed that
the Respondent had kidnapped Anita Kumari from Lalten Basti and FIR was
registered at the behest of the residents. He reported the incident to his
higher officers. He also stated that the Respondent disobeyed the order of
his superiors and left the unit line on 15.08.1999. On appreciation of the
evidence on record, the Disciplinary Authority concluded that Charge 1 was
proved. The desertion from 15.08.1999 to 20.08.1999 is an act of gross
indiscipline warranting a penalty according to the Disciplinary Authority.
The High Court held that the Respondent resumed duty and left the unit line
in view of the fear for his life from the residents of the locality due to
the registration of FIR. The High Court found that no misconduct was
committed by the Respondent in disobeying the directions of his superiors
not to leave the unit line. The High Court was of the opinion that any
prudent person would have acted in the same manner. The High Court held
that the Charge proved was not serious for which the Respondent should be
punished.
Contrary to findings of the Disciplinary Authority, the High Court accepted
the version of the Respondent that he fell ill and was being treated by a
local doctor without assigning any reasons. It was held by the
Disciplinary Authority that the Unit had better medical facilities which
could have been availed by the Respondent if he was really suffering from
illness. It was further held that the delinquent did not produce any
evidence of treatment by a local doctor. The High Court should not have
entered into the arena of facts which tantamounts to re-appreciation of
evidence. It is settled law that re-appreciation of evidence is not
permissible in the exercise of jurisdiction under Article 226 of the
Constitution of India. In State Bank of Bikaner and Jaipur v. Nemi Chand
Nalwaiya reported in (2011) 4 SCC 584, this Court held as follows:
“7. It is now well settled that the courts will not act as an appellate
court and reassess the evidence led in the domestic inquiry, nor interfere
on the ground that another view is possible on the material on record. If
the inquiry has been fairly and properly held and the findings are based on
evidence, the question of adequacy of the evidence or the reliable nature
of the evidence will not be grounds for interfering with the findings in
departmental enquiries. Therefore, courts will not interfere with findings
of fact recorded in departmental enquiries, except where such findings are
based on no evidence or where they are clearly perverse. The test to find
out perversity is to see whether a tribunal acting reasonably could have
arrived at such conclusion or finding, on the material on record. The
courts will however interfere with the findings in disciplinary matters, if
principles of natural justice or statutory regulations have been violated
or if the order is found to be arbitrary, capricious, mala fide or based on
extraneous considerations. (Vide B.C. Chaturvedi v. Union of India [(1995)
6 SCC 749: 1996 SCC (L&S) 80: (1996) 32 ATC 44], Union of India v. G.
Ganayutham [(1997) 7 SCC 463: 1997 SCC (L&S) 1806], Bank of India v. Degala
Suryanarayana [(1999) 5 SCC 762: 1999 SCC (L&S) 1036] and High Court of
Judicature at Bombay v. Shashikant S. Patil.”
In Union of India & Ors. v. P. Gunasekaran reported in (2015) 2 SCC 610,
this Court held as follows:
“12. Despite the well-settled position, it is painfully disturbing to
note that the High Court has acted as an appellate authority in the
disciplinary proceedings, re-appreciating even the evidence before the
inquiry officer. The finding on Charge I was accepted by the disciplinary
authority and was also endorsed by the Central Administrative Tribunal. In
disciplinary proceedings, the High Court is not and cannot act as a second
court of first appeal. The High Court, in exercise of its powers under
Articles 226/227 of the Constitution of India, shall not venture into re-
appreciation of the evidence. The High Court can only see whether:
(a) the inquiry is held by a competent authority;
(b) the inquiry is held according to the procedure prescribed in that
behalf;
(c) there is violation of the principles of natural justice in conducting
the proceedings;
(d) the authorities have disabled themselves from reaching a fair
conclusion by some considerations extraneous to the evidence and merits of
the case;
(e) the authorities have allowed themselves to be influenced by irrelevant
or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and
capricious that no reasonable person 13.could ever have arrived at such
conclusion;
(g) the disciplinary authority had erroneously failed to admit the
admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible
evidence which influenced the finding;
13.(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court
shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the inquiry, in case the same has
been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be
based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its
conscience.”
We are in agreement with the findings and conclusion of the Disciplinary
Authority as confirmed by the Appellate Authority and Revisional Authority
on Charge No. 1. Indiscipline on the part of a member of an Armed Force has
to be viewed seriously. It is clear that the Respondent had intentionally
disobeyed the orders of his superiors and deserted the Force for a period
of 5 days. Such desertion is an act of gross misconduct and the Respondent
deserves to be punished suitably.
Charge No. 3 was that the Respondent had become habitual in committing
indiscipline and disorderliness. A reference was made to two major
penalties of deduction of pay and one minor punishment of reduction of
seven days salary earlier. The Disciplinary Authority found that the
Respondent did not improve in spite of being punished earlier. The High
Court agreed with the contention of the Respondent and held that a fresh
enquiry cannot be initiated into a misconduct for which a delinquent had
already suffered a penalty. The High Court found that any penalty imposed
under Charge No. 3 would amount to double jeopardy. We disagree with the
finding of the High Court as we are of the view that the Respondent was not
being tried again for previous misconduct. As the Respondent did not
improve in spite of being punished earlier and had become habitual in
indiscipline and disorderliness, the Disciplinary Authority rightly found
Charge No. 3 as proved. The desirability of continuance of the Respondent
was considered on the basis of his past conduct which does not amount to
double jeopardy. In any event, past conduct of a delinquent employee can
be taken into consideration while imposing penalty. We are supported in
this view by a Judgement of this Court in Union of India v. Bishamber Das
Dogra, reported in (2009) 13 SCC 102 held as follows:
"30. ...... But in case of misconduct of grave nature or indiscipline,
even in the absence of statutory rules, the authority may take into
consideration the indisputable past conduct/service record of the employee
for adding the weight to the decision of imposing the punishment if the
facts of the case so require."
The Respondent was exonerated of Charge No. 2 by the Appellate Authority.
The Revisional Authority confirmed the order of the Appellate Authority.
The judgment relied upon by the Respondent in G.M. Tank Vs. State of
Gujarat and Ors.(supra) is not relevant as in that case the point for
consideration was whether the departmental proceedings can be held after
acquittal of a public servant in a criminal case on similar set of facts.
12. Though we are of the view that the High Court ought not to have
interfered with the order passed by the Disciplinary Authority, the penalty
of dismissal from service is not commensurate with delinquency. The
Respondent was found guilty of desertion of the Force for a period of five
days and not improving his conduct in spite of imposition of penalties on
three occasions earlier. For the above delinquencies, the penalty of
dismissal from service is excessive and harsh. In our view, the penalty of
compulsory retirement would meet the ends of justice. We are informed by
the counsel for the Appellants that the Respondent is entitled for pension
as he has completed 10 years of service. In order to avoid any
controversy, we direct that the Respondent shall be entitled for notional
continuity of service till the date of completion of minimum service
required to make him eligible for pension. He will not be entitled for
payment of salary and allowances for that period.
13. For the aforesaid reasons, the Appeal is allowed with the above
modification in the penalty.
.....…...........................CJI
[T. S. THAKUR]
........................................J
[Dr. D. Y. CHANDRACHUD]
..……................................J
[L. NAGESWARA RAO]
New Delhi,
December 14, 2016
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 2148 of 2015
CENTRAL INDUSTRIAL SECURITY FORCE & ORS.
.... Appellant(s)
Versus
ABRAR ALI
….Respondent
J U D G M E N T
L. NAGESWARA RAO, J.
The Respondent was appointed as a Constable in Central Industrial
Security Force (CISF) on 10.09.1990. By a memorandum dated 08.10.1999, an
inquiry was proposed under Rule 36 of the C.I.S.F. Rules, 1969 for
allegations of misconduct and misbehavior for the following Charges:
“Article of Charge-I
No.903190893, Ct. Abrar Ali, Area No. IV, Central Industrial
Security Force, BCCL Unit, Dhanbad was granted 2 days casual leave from
12.08.1999 to 13.08.1999 and 14.08.1999 was a second Saturday. He had to
resume his duty on 15.08.1999 (F/N). But, he reported for his duty at 1730
hrs. Thereafter, Asstt. Commandant of Area No. 4 directed the said Abrar
Ali to remain inside the Camp as there was apprehension of danger to his
life from the residents of nearby Basti. At about 1900 hrs when Abrar Ali
was searched by C.H.M. to serve his suspension order, he was again found
absent from the Camp. The said member of the force did not even deposit
his leave Certificate in the Unit Office after coming back from leave.
Therefore, Abrar Ali No.903190893 being a member of armed forces, is
grossly negligent towards his duties and has disobeyed the
Orders/directions of the Superior Officers, which amounts to gross
misconduct and indiscipline on the part of the said member. Hence, this
Charge.
Article of Charge-II
No.903190893, Ct. Abrar Ali, Area No. IV, Central Industrial
Security Force, BCCL Unit, Dhanbad was granted 2 days casual leave from
12.08.1999 to 13.08.1999 and 14.08.1999 was a second Saturday. The said
member of the force while proceeding on leave took one girl named Anita
Kumari D/o Shri Rajendr Rajbar R/o Lalten Basti, Angarpathra (Dhanbad),
aged about 15-16 years with him to Delhi on the pretext of getting her
married to a Hindu boy and come back after leaving the said Anita Kumari at
the house of an old man. The brother of the said force member, Jamaruddin,
who also is a member of the Delhi Armed Police took Anita Kumari to
Dhanbad. On 20.08.1999, Anita Kumari made a statement before the Judicial
Magistrate, Dhanbad, in FIR No.260/99 dated 13.08.1999. Thereafter, the
said force member Abrar Ali surrendered in the Court of C.J.M., Dhanbad on
20.08.1999 from where he was sent to jail for committing the said offence.
No. 903190893 Ct. Abrar Ali being a member of me force has committed an act
of indiscipline and has maligned the image of the force, which is a serious
misconduct. Hence, this Charge.
Article of Charge - III
Ct. Abrar Ali No. 903190893, Area No.IV, Central Industrial
Security Force, BCCL Unit, Dhanbad, has already been awarded three
punishments, 2 major punishments (deduction in pay) and one minor
punishment (deduction of 7 days’ salary) for various acts of indiscipline
and negligence during the short span of his service. Despite the
aforesaid, he has failed to improve himself and to abide the rules, which
shows that the said member is habitual of committing indiscipline. Hence
this Charge.
The Commandant, Central Industrial Security Force, BCCL Unit, Dhanbad by a
final order dated 28.11.2000 held the Respondent guilty of all the Charges.
Finding the Respondent unworthy of retention in Force due to his acts of
indiscipline and misconduct, the Disciplinary Authority dismissed the
Respondent from service. Aggrieved by the Order of dismissal, the
Respondent filed an appeal to the Deputy Inspector General, Central
Industrial Security Force, BCCL Unit, Dhanbad. The Appellate Authority
rejected the appeal by Order dated 01.02.2001. The Respondent was
exonerated of Charge 2 and held guilty of Charges 1 and 3. The Revision
Petition filed by the Respondent was dismissed by the Inspector General,
E.S. Headquarters, Patna by an Order dated 31.12.2010. The punishment of
dismissal from service imposed on the Respondent was found to be
proportionate to the gravity of the misconduct by both the Appellate and
Revisional Authorities. The Respondent filed Writ Petition no. 1241 of
2001 in the High Court of Delhi challenging the Order of dismissal dated
28.11.2000 as well as the Orders dated 01.02.2001 of the Appellate
Authority and 31.12.2010 of the Revisional Authority. By its judgment
dated 11.08.2014, the High Court of Delhi allowed the Writ Petition and
directed the Respondent to be reinstated forthwith as Constable C.I.S.F.
with notional seniority in his rank. There was a direction for payment of
the entire arrears of his salary and other allowances within 2 months from
the date of the judgment. The Respondent was also held entitled for costs
quantified at Rs. 15,000/-. Aggrieved by the said judgment dated
11.08.2014 of the High Court of Delhi, the Appellants preferred this
Appeal.
Mr. Yashank Adhyaru, learned Senior Counsel appearing for the Appellants
submitted that the Order of dismissal ought not to have been interfered
with by the High Court in exercise of its jurisdiction under Article 226 of
the Constitution of India. He further submitted that there is no bar of
holding a departmental inquiry in spite of an acquittal by a Criminal
Court. The past conduct of the delinquent employee could, still, be a
subject matter of a Disciplinary Proceeding. He contended that the penalty
of dismissal from service is proportionate with the delinquency.
Dr. L.S.Chaudhary, Advocate appearing for the Respondent submits that the
Respondent was acquitted by the Criminal Court and he should not have been
tried for the same Charge by way of a departmental inquiry. He also relied
upon a judgment of this Court in G.M. Tank v. State of Gujarat & Ors.,
reported in (2006) 5 SCC 446 in support thereof. He further submitted that
Charge No. 1 did not warrant a penalty of dismissal and penalizing the
Respondent for Charge No. 3 would amount to double jeopardy.
The relevant facts for adjudication of this case are as follows:
The Respondent was appointed as a Constable in C.I.S.F. on
10.09.1990. While working at C.I.S.F., BCCL Unit, Dhanbad, he was granted
casual leave for 2 days on 12.08.1999. On 13.08.1999, FIR No. 260/99 was
registered under Section 366 A and 376 of the Indian Penal Code, 1860 in
Katras Police Station on a complaint by the residents of Lalten Basti that
the Respondent kidnapped Anita Kumari, a minor girl. The Respondent
reported back to duty at 1730 hrs on 15.08.1999. He was informed by the
Assistant Commandant that there was danger to his life from the people
living in Lalten Basti and he was ordered to remain in the unit lines. He
was not found in the unit lines at 1900 hrs on 15.08.1999 when a suspension
order was sought to be served on him. The authorities were informed that
the Respondent surrendered before the Officer-In-Charge of Angarpathra
Police Station at around 2000 hrs on 20.08.1999. Though the victim Anita
Kumari made a statement which was recorded under Section 164 Cr. P.C. by
the Magistrate, she retracted from the statement in the trial. The other
witnesses were declared hostile. The Respondent was acquitted of the
Charges under Section 366 A and 376 IPC by a judgment dated 29.03.2001 of
the Sixth Addl. Sessions Judge, Dhanbad.
The point that arises for our consideration is whether the finding of the
Disciplinary Authorities holding the Respondent guilty of Charges 1 and 3
was justified and whether the penalty of dismissal was proportionate.
Charge No.1 pertains to the act of indiscipline of the Respondent in
leaving the unit line on 15.08.1999 in spite of a specific order. There is
evidence on record to show that the Respondent reported for duty at 1730
hrs on 15.08.1999 and disappeared thereafter in spite of instructions not
to leave the unit line. Even according to the Respondent, the situation
was tense and there was danger to his life from the residents of the Basti
who lodged FIR against him. The Respondent submitted in the departmental
inquiry that he did not resume duty on 15.08.1999 after being informed
about the registration of FIR. He further stated that he fell ill and was
taking treatment from a local doctor from 15.08.1999 to 20.08.1999 at
Tutalmari. He surrendered before the Police at 2000 hrs on 20.08.1999. The
Respondent’s brother Jamaruddin, who is a member of Delhi Police Force, was
examined as PW-9 and Kaniz Fatima, wife of the Respondent was examined as
PW-2. They supported the version of the Respondent that he availed leave
for two days, did not resume duty in view of the registration of FIR and
that he surrendered before the Criminal Court on 20.08.1999. PW-8 Bijender
Singh, HC/GD deposed before the Inquiry Officer that the Respondent was
directed by the Assistant Commandant, Ansuman Gaur, to stay in the unit
line. He was asked to serve a copy of the suspension order on the
Respondent at 1900 hrs. on 15.08.1999. However, the Respondent was not
traceable in the camp or at his official residence. Court Witness No.1, SB
Mishra, Inspector stated in the departmental inquiry that he was the
Company Commander who granted leave for two days to the Respondent on
11.08.1999. He deposed that officer-in-Charge of Angarpathra Police
Station visited him at 1200 hrs. on 12.08.1999. The officer informed that
the Respondent had kidnapped Anita Kumari from Lalten Basti and FIR was
registered at the behest of the residents. He reported the incident to his
higher officers. He also stated that the Respondent disobeyed the order of
his superiors and left the unit line on 15.08.1999. On appreciation of the
evidence on record, the Disciplinary Authority concluded that Charge 1 was
proved. The desertion from 15.08.1999 to 20.08.1999 is an act of gross
indiscipline warranting a penalty according to the Disciplinary Authority.
The High Court held that the Respondent resumed duty and left the unit line
in view of the fear for his life from the residents of the locality due to
the registration of FIR. The High Court found that no misconduct was
committed by the Respondent in disobeying the directions of his superiors
not to leave the unit line. The High Court was of the opinion that any
prudent person would have acted in the same manner. The High Court held
that the Charge proved was not serious for which the Respondent should be
punished.
Contrary to findings of the Disciplinary Authority, the High Court accepted
the version of the Respondent that he fell ill and was being treated by a
local doctor without assigning any reasons. It was held by the
Disciplinary Authority that the Unit had better medical facilities which
could have been availed by the Respondent if he was really suffering from
illness. It was further held that the delinquent did not produce any
evidence of treatment by a local doctor. The High Court should not have
entered into the arena of facts which tantamounts to re-appreciation of
evidence. It is settled law that re-appreciation of evidence is not
permissible in the exercise of jurisdiction under Article 226 of the
Constitution of India. In State Bank of Bikaner and Jaipur v. Nemi Chand
Nalwaiya reported in (2011) 4 SCC 584, this Court held as follows:
“7. It is now well settled that the courts will not act as an appellate
court and reassess the evidence led in the domestic inquiry, nor interfere
on the ground that another view is possible on the material on record. If
the inquiry has been fairly and properly held and the findings are based on
evidence, the question of adequacy of the evidence or the reliable nature
of the evidence will not be grounds for interfering with the findings in
departmental enquiries. Therefore, courts will not interfere with findings
of fact recorded in departmental enquiries, except where such findings are
based on no evidence or where they are clearly perverse. The test to find
out perversity is to see whether a tribunal acting reasonably could have
arrived at such conclusion or finding, on the material on record. The
courts will however interfere with the findings in disciplinary matters, if
principles of natural justice or statutory regulations have been violated
or if the order is found to be arbitrary, capricious, mala fide or based on
extraneous considerations. (Vide B.C. Chaturvedi v. Union of India [(1995)
6 SCC 749: 1996 SCC (L&S) 80: (1996) 32 ATC 44], Union of India v. G.
Ganayutham [(1997) 7 SCC 463: 1997 SCC (L&S) 1806], Bank of India v. Degala
Suryanarayana [(1999) 5 SCC 762: 1999 SCC (L&S) 1036] and High Court of
Judicature at Bombay v. Shashikant S. Patil.”
In Union of India & Ors. v. P. Gunasekaran reported in (2015) 2 SCC 610,
this Court held as follows:
“12. Despite the well-settled position, it is painfully disturbing to
note that the High Court has acted as an appellate authority in the
disciplinary proceedings, re-appreciating even the evidence before the
inquiry officer. The finding on Charge I was accepted by the disciplinary
authority and was also endorsed by the Central Administrative Tribunal. In
disciplinary proceedings, the High Court is not and cannot act as a second
court of first appeal. The High Court, in exercise of its powers under
Articles 226/227 of the Constitution of India, shall not venture into re-
appreciation of the evidence. The High Court can only see whether:
(a) the inquiry is held by a competent authority;
(b) the inquiry is held according to the procedure prescribed in that
behalf;
(c) there is violation of the principles of natural justice in conducting
the proceedings;
(d) the authorities have disabled themselves from reaching a fair
conclusion by some considerations extraneous to the evidence and merits of
the case;
(e) the authorities have allowed themselves to be influenced by irrelevant
or extraneous considerations;
(f) the conclusion, on the very face of it, is so wholly arbitrary and
capricious that no reasonable person 13.could ever have arrived at such
conclusion;
(g) the disciplinary authority had erroneously failed to admit the
admissible and material evidence;
(h) the disciplinary authority had erroneously admitted inadmissible
evidence which influenced the finding;
13.(i) the finding of fact is based on no evidence.
13. Under Articles 226/227 of the Constitution of India, the High Court
shall not:
(i) re-appreciate the evidence;
(ii) interfere with the conclusions in the inquiry, in case the same has
been conducted in accordance with law;
(iii) go into the adequacy of the evidence;
(iv) go into the reliability of the evidence;
(v) interfere, if there be some legal evidence on which findings can be
based.
(vi) correct the error of fact however grave it may appear to be;
(vii) go into the proportionality of punishment unless it shocks its
conscience.”
We are in agreement with the findings and conclusion of the Disciplinary
Authority as confirmed by the Appellate Authority and Revisional Authority
on Charge No. 1. Indiscipline on the part of a member of an Armed Force has
to be viewed seriously. It is clear that the Respondent had intentionally
disobeyed the orders of his superiors and deserted the Force for a period
of 5 days. Such desertion is an act of gross misconduct and the Respondent
deserves to be punished suitably.
Charge No. 3 was that the Respondent had become habitual in committing
indiscipline and disorderliness. A reference was made to two major
penalties of deduction of pay and one minor punishment of reduction of
seven days salary earlier. The Disciplinary Authority found that the
Respondent did not improve in spite of being punished earlier. The High
Court agreed with the contention of the Respondent and held that a fresh
enquiry cannot be initiated into a misconduct for which a delinquent had
already suffered a penalty. The High Court found that any penalty imposed
under Charge No. 3 would amount to double jeopardy. We disagree with the
finding of the High Court as we are of the view that the Respondent was not
being tried again for previous misconduct. As the Respondent did not
improve in spite of being punished earlier and had become habitual in
indiscipline and disorderliness, the Disciplinary Authority rightly found
Charge No. 3 as proved. The desirability of continuance of the Respondent
was considered on the basis of his past conduct which does not amount to
double jeopardy. In any event, past conduct of a delinquent employee can
be taken into consideration while imposing penalty. We are supported in
this view by a Judgement of this Court in Union of India v. Bishamber Das
Dogra, reported in (2009) 13 SCC 102 held as follows:
"30. ...... But in case of misconduct of grave nature or indiscipline,
even in the absence of statutory rules, the authority may take into
consideration the indisputable past conduct/service record of the employee
for adding the weight to the decision of imposing the punishment if the
facts of the case so require."
The Respondent was exonerated of Charge No. 2 by the Appellate Authority.
The Revisional Authority confirmed the order of the Appellate Authority.
The judgment relied upon by the Respondent in G.M. Tank Vs. State of
Gujarat and Ors.(supra) is not relevant as in that case the point for
consideration was whether the departmental proceedings can be held after
acquittal of a public servant in a criminal case on similar set of facts.
12. Though we are of the view that the High Court ought not to have
interfered with the order passed by the Disciplinary Authority, the penalty
of dismissal from service is not commensurate with delinquency. The
Respondent was found guilty of desertion of the Force for a period of five
days and not improving his conduct in spite of imposition of penalties on
three occasions earlier. For the above delinquencies, the penalty of
dismissal from service is excessive and harsh. In our view, the penalty of
compulsory retirement would meet the ends of justice. We are informed by
the counsel for the Appellants that the Respondent is entitled for pension
as he has completed 10 years of service. In order to avoid any
controversy, we direct that the Respondent shall be entitled for notional
continuity of service till the date of completion of minimum service
required to make him eligible for pension. He will not be entitled for
payment of salary and allowances for that period.
13. For the aforesaid reasons, the Appeal is allowed with the above
modification in the penalty.
.....…...........................CJI
[T. S. THAKUR]
........................................J
[Dr. D. Y. CHANDRACHUD]
..……................................J
[L. NAGESWARA RAO]
New Delhi,
December 14, 2016
