The Union Of India And ORS. v. Sanjit Madhu

IN THE HIGH COURT AT CALCUTTA

CONSTITUTIONAL WRIT JURISDICTION APPELLATE SIDE [CIRCUIT BENCH AT PORT BLAIR] ******** PRESENT: HON'BLE JUSTICE SABYASACHI BHATTACHARYYA AND HON'BLE JUSTICE HIRANMAY BHATTACHARYYA WP.CT/5/2022 The Union of India and others ... Petitioners

Versus

Sanjit Madhu ... Respondent For the petitioners : Mrs. Anjili Nag For the respondent : Mr. Gopala Binnu Kumar Heard on : July 26, 2022 Judgment on : July 29, 2022 HIRANMAY BHATTACHARYYA, J.

1.

This writ petition is at the instance of the Union of India and the Andaman and Nicobar Administration (for short the Administration) praying for issuance of a writ in the nature of certiorari to quash the order dated February 2, 2022 passed by the Central Administrative Tribunal, Kolkata Bench, Kolkata (for short the Tribunal) in OA No. 351/00806/2021. 2.

By the order impugned the order of penalty and the appellate order were quashed and the matter was remanded to

the disciplinary authority to pass an appropriate order within a specified time limit.

3.

The facts giving rise to this writ petition in a nutshell are as follows:- a.

The original applicant was appointed as Police Constable in Andaman & Nicobar Police department on August 2, 1999 and was subsequently promoted to the rank of Head Constable on January 24, 2011.

b.

On August 29, 2015 the staff of Aberdeen Police Station arrested one Shri Sanjay Chakraborty for carrying IMFL bottles in his car.

c.

A case vide Crime No. 582/15 dated August 29, 2015 under Section 32 of the Andaman and Nicobar Islands Regulation-iii of 1876 was registered. During investigation of the above case the accused namely Sanjay Chakraborty disclosed the name of the original applicant for facilitating him in arranging room in his favour at Hotel Raj Prakash, Lamba Line and the liquor bottles were for the purpose of distribution during election campaign.

d.

The original applicant was placed under suspension vide order dated August 31, 2015 by the Superintendent of Police, being disciplinary authority and preliminary

inquiry was ordered. The Enquiry Officer submitted his report on October 10, substantiating the involvement of the original applicant.

e.

The Superintendent of Police issued the Memorandum dated October 19, 2015 proposing to hold a regular departmental inquiry against the original applicant.

f.

The original applicant submitted his reply denying the charges levelled against him.

g.

The enquiry officer submitted his findings on November 7, 2016 substantiating involvement of the original applicant alongwith accused Sanjay Chakraborty in connection with the case being Crime No. 582/15. h.

The original applicant submitted a reply against the report of the enquiry officer with a request to exonerate him from the charges.

i.

The disciplinary authority imposed the penalty of withholding of his two future increments with cumulative effect by an order dated January 2, 2017.

j.

The original applicant being the charged officer preferred an appeal before the appellate authority and the appellate authority after examining the entire records

pertaining to the departmental proceeding was of the view that the punishment imposed by the disciplinary authority against the original applicant is not in consonance with the grave misconduct and accordingly proposed to enhance penalty by issuing a show cause notice dated April 10, 2021.

k.

The original applicant duly replied to the said show cause notice and the appellate authority by an order No. 1579 dated April 29, 2021 imposed the penalty of reversion from the rank of Head Constable to Police Constable (Executive) for a period of five years and postpone his future increment of pay during the penalty period.

l.

The respondent herein filed an Original Application before the Tribunal and the learned Tribunal, by the order impugned, after quashing the penalty order and the appellate order remanded the matter to the disciplinary authority to pass an appropriate order.

4.

Being aggrieved against the order of remand passed by the Tribunal, the Union of India and the Administration filed this writ petition.

5.

Mrs. Nag, the learned advocate appearing for the writ petitioners contended that the learned Tribunal failed to

appreciate the evidence of the PW-5 and PW-6 wherefrom it will be evident that the accused namely Sanjay Chakraborty disclosed during interrogation that charged officer had helped the accused for the election campaign and had arranged IMFL bottles from the bar in the name of Hotel Raj Prakash located at Lamba Line. She attacked the findings of the learned Tribunal holding that the statements made by the Sanjay Chakraborty during investigation is inadmissible in evidence by contending that the statements made before the Investigating Officer is admissible in disciplinary proceedings where the nature of proof required is preponderance of probabilities.

She further contended that the Tribunal ought not to have remanded the matter to the disciplinary authority after returning findings on reappreciation of evidence. Mrs. Nag further contended that since the finding recorded by the enquiry officer was accepted by the disciplinary authority who ultimately passed the penalty order and appellate authority after considering materials on record enhanced the penalty imposed by the disciplinary authority, the Tribunal ought not to have set aside such orders as the Hon'ble Supreme Court in the case of Government of T.N. and others vs S.Vel Raj reported at (1997) 2 SCC 708 held that the Tribunal cannot act as an appellate authority and re-examine the evidence. On the same proposition Mrs. Nag relied upon the decision of the Hon'ble Supreme Court in the case of Government of Tamil Nadu and another vs A.

Rajapandian reported at (1995) 1 SCC 216. She further referred to a decision of the Hon'ble Supreme Court in the case of Union of India vs Parma Nanda reported at (1989) 2 SCC 177 in support of her contention that the Tribunal has no jurisdiction to interfere with the penalty imposed by the competent authority.

6.

Per contra, Mr. Gopala Binnu Kumar, learned advocate for the respondent submits that there is no evidence what so ever to link the charged officer with the alleged misconduct. He contended that the PW 2, PW-3 and PW-4 categorically deposed that the accused Sanjay Chakraborty did not disclose the name of the charged officer. He further submitted that the accused Sanjay Chakraborty in his evidence as DW-1 also did not admit that the charged officer helped him in getting the IMFL bottles. He further contended that the manager of the Hotel who deposed as PW-8 also denied that he disclosed the name of the charged officer to the Investigating Officer of the case. Mr. Gopala Binnu Kumar contended that since the imposition of penalty falls within the domain of the employer, learned Tribunal was justified in remanding the matter to the disciplinary authority for passing the appropriate order. Mr. Gopala Binnu Kumar contended that the statement recorded under Section 161 Code of Criminal is inadmissible in evidence and the same cannot be relied upon in the disciplinary

proceeding against the charged officer. On the evidentiary value of the statements made under Section 161 of Criminal Procedure Code he relied upon a decision of the Hon'ble Supreme Court in the case of Parvat Singh and others vs State of Madhya Pradesh reported at (2020) 4 SCC 33. 7.

Heard the learned advocates for the parties and perused the materials on record.

8.

It is well settled that the charges in a departmental proceeding are not required to be proved beyond all reasonable doubts like a criminal trial. However, the enquiry officer while inquiring into the charge of misconduct performs a quasijudicial function. The enquiry officer after analysing the evidence adduced by the witness in the inquiry proceeding must arrive at a conclusion that there had been a preponderance of probabilities to prove the charges on the basis of the materials that are available on record. The enquiry officer while arriving at a conclusion cannot refuse to consider the relevant facts and also cannot take into consideration any irrelevant fact. The enquiry officer also cannot reject the relevant testimony of the witnesses only on the basis of the surmises and conjectures. For the purpose of arriving at a conclusion that the charged officer has committed the misconduct there must be some evidence on record which is a relevant one to establish the nexus between the alleged misconduct and the charged officer.

9.

The Hon'ble Supreme Court in the case of Parvat Singh (supra) while considering the evidentiary value of a statement recorded under Section 161 of the Code of Criminal Procedure held that as per settled proposition of law a statement recorded under Section 161 of the Code of Criminal Procedure is inadmissible in evidence and cannot be relied upon. It was further held that such statements can be used only to prove the contradiction and/or omission.

10.

Therefore, by applying the ratio laid down by the Hon'ble Supreme Court in Parvat Singh (supra) this Court is of the considered view that the purported confession by Sanjay Chakraborty before the Investigating officer cannot be said to be a substantive evidence.

11.

An evidence which is per se inadmissible in law cannot be looked into even in departmental proceedings where the nature of proof required is preponderance of probability. This Court therefore holds that the purported confession of Sanjay Chakraborty before the Investigating Officer ought to have been excluded by the Enquiry Officer. This Court is thus unable to accept the submission of Mr. Nag that the purported statement of Sanjay Chakraborty under Section 161 of the Criminal Procedure Code is admissible in disciplinary proceedings.

12.

The learned Tribunal after taking took note of the aforesaid well settled principle rightly held that the statement made before a police personnel cannot be used as an evidence. 13.

This aspect can also be looked into from a different angle. The only basic evidence whereupon reliance has been placed by the enquiry officer was the purported confession made by the Sanjay Chakraborty before the Investigating Officer. When the enquiry officer had relied upon the purported confession made by Sanjay Chakraborty before the Investigating Officer, there was no reason as to why the statements made by the said Sanjay Chakraborty as DW-1 before the enquiry officer that the charged officer had only helped him getting room at Hotel Raj Prakash and not the IMFL bottles should not be taken into consideration. The learned Tribunal, in our considered view, rightly observed that the conclusion arrived at in the instant case is not based on analysis of evidence.

14.

The Hon'ble Supreme Court in the case of M.V.Bijlani vs Union of India and others reported at (2006) 5 SCC 88 elaborately described the manner in which the enquiry officer has to perform his function in a departmental proceeding. The Hon'ble Supreme Court held thus:- "25. xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx. 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 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."

15.

The Hon'ble Supreme Court in the case of Roop Singh Negi vs. Punjab National Bank and others reported at (2009) 2 SCC 570 on the scope of judicial review held as follows:- "17. In Moni Shankar v. Union of India this Court held:(SCC p.492, para 17) "17. The departmental proceeding is a quasi judicial one. Although the provisions of the Evidence Act are not applicable in the said proceeding, principles of natural justice are required to be complied with. The courts exercising power of judicial review are entitled to consider as to whether while inferring commission of misconduct on the part of a delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom. Inference on facts must be based on evidence which meet the requirements of legal principles.

The Tribunal was, thus, entitled to arrive at its own conclusion on the premise that the evidence adduced by the Department, even if it is taken on its face value to be correct in its entirety, meet the requirements of burden of proof, namely, preponderance of probability. If on such evidences, the test of the doctrine of proportionality has not been satisfied, the Tribunal was within its domain to interfere. We must place on record that the doctrine of unreasonableness is giving way to the doctrine of proportionality."

18. In Narinder Mohan Arya vs. United India Insurance Co. Ltd. whereupon both the learned counsel relied, this Court held: (SCC p. 724, para 26)

"26. In our opinion the learned Single Judge and consequently the Division Bench of the High Court did not pose unto themselves the correct question. The matter can be viewed from two angles. Despite limited jurisdiction a civil court, it was entitled to interfere in a case where the report of the Enquiry Officer is based on no evidence. In a suit filed by a delinquent employee in a civil court as also a writ court, in the event the findings arrived at in the departmental proceedings are questioned before it, it should keep in mind the following: (1) the enquiry officer is not permitted to collect any material from outside sources during the conduct of the enquiry. (See State of Assam v. Mahendra Kumar Das.) (2) In a domestic enquiry fairness in the procedure is a part of the principles of natural justice (See Khem Chand v.

Union of India and State of U.P. v. Om Prakash Gupta. (3) Exercise of discretionary power involves two elements-(i) objective, and (ii) subjective and existence of the exercise of an objective element is a condition precedent for exercise of the subjective element. (See K.L. Tripathi v. SBI.) (4) It is not possible to lay down any rigid rules of the principles of natural justice which depends on the facts and circumstances of each case but the concept of fair play in action is the basis. (See Sawai Singh v. State of Rajasthan.) (5) The enquiry officer is not permitted to travel beyond the charges and any punishment imposed on the basis of a finding which was not the subject matter of the charges is wholly illegal. (See Export Inspection Council of India v. Kalyan Kumar Mitra.)

(6) Suspicion or presumption cannot take the place of proof even in a domestic enquiry. The writ court is entitled to interfere with the findings of the fact of any tribunal or authority in certain circumstances. (See Central Bank of India Ltd. v. Prakash Chand Jain and Kuldeep Singh v. Commr. of Police .)"

16.

Thus, it is evident from the aforesaid reported decision that the Tribunal is entitled to consider as to whether while inferring commission of misconduct on the part of the delinquent officer relevant piece of evidence has been taken into consideration and irrelevant facts have been excluded therefrom.

17.

The enquiry officer relied upon the purported confession made by Sanjay Chakraborty before the Investigating Officer which is inadmissible in evidence and at the same time discarded the evidence of the PW-1, PW-2, PW-3, PW-4 who were examined by the department as well as the evidence of the DW-1. The enquiry officer while inferring commission of misconduct on the part of the charged officer took into consideration the inadmissible evidence and discarded the relevant piece of evidence. Therefore, the learned Tribunal, in the considered view of this Court, was right in observing that the conclusion arrived at the instant case is not based on analysis of evidence.

18.

The learned Tribunal examined the evidence of the prosecution witnesses as well as the defence witnesses in detail and held that the enquiry officer solely banked upon the deposition of PW-5 and PW-6 in order to hold that DW-1 during investigation of the criminal case had disclosed the name of the charged officer. The learned Tribunal further recorded that the enquiry officer discarded the statements made by the PW-1, PW2, PW-3, PW-4 and the DW-1 which were in favour of the charged officer. The learned Tribunal, in our considered view, rightly held that the conclusion of the enquiry officer that the charged officer had facilitated purchase of IMFL bottles was neither based on direct evidence or even on the basis of

preponderance of probabilities. The learned Tribunal also took note of various decisions of the Hon'ble Supreme Court of India on the scope of interference by the Tribunal in a matter pertaining to disciplinary proceedings including the decisions in the case of M.V.Bijlani (supra) and Roop Singh Negi (supra) while passing the order under challenge.

19.

The exercise undertaken by the learned Tribunal, as would be evident from the findings, was for the limited purpose of review of the decision making process and not the correctness of the decision. The findings of the Tribunal in the case on hand cannot be said to be upon reappreciation of evidence as sought to be argued by Mrs. Nag.

20.

In the case of S.Vel Raj (supra) the Hon'ble Supreme Court held that it was not open to the Tribunal to record contrary finding and to hold that the charges were not proved as on facts it was observed that the finding recorded by the enquiry officer and confirmed by the appellate authority were based upon the evidence led during the inquiry and it was not even contended that the said finding were perverse. The said decision is distinguishable on facts and as such is not applicable to the case on hand.

21.

In A. Rajapandian (supra) the Hon'ble Supreme Court held that the Tribunal fell into patent error and acted wholly

beyond its jurisdiction by reaching different conclusions from the inquiring authority on its own evaluation of the evidence. There is no quarrel to the aforesaid proposition of law but the same has no manner of application to the facts of the case on hand as in the instant case relevant piece of evidence was not considered and on the contrary inadmissible evidence was relied upon by the enquiry officer.

22.

The decision of the Hon'ble Supreme Court in the case of Parma Nanda (supra) is not applicable to the case on hand as in that reported case the Tribunal interfered with the penalty on the ground that it is not commensurate with the delinquency of an official.

23.

The learned Tribunal has assigned cogent reasons in support of its conclusion for quashing the penalty order and the appellate order. The purpose behind departmental enquiry is to maintain discipline in service. Since the employer is the best person to discipline its employees and the imposition of penalty falls within the domain of the employer, the learned Tribunal, in our view, was justified in remanding the matter to the disciplinary authority. The order of remand passed by the learned Tribunal does not suffer from infirmity. 24.

For the reasons as aforesaid this Court is of the considered view that the order impugned does not call for any

interference by this Court under Article 226 of the Constitution of India.

25.

WP.CT 5 of 2022 accordingly stands dismissed without, however, any order as to costs.

26.

Urgent photostat certified copy of this order shall be supplied to the parties upon compliance of all formalities. (HIRANMAY BHATTACHARYYA, J.) 27.

I agree.

(SABYASACHI BHATTACHARYYA, J.)