High Court
Case Details
WA 371/2010 B E F O R E HON’BLE MR. JUSTICE A.K.GOEL,THE CHIEF JUSTICE THE HON’BLE MR. JUSTICE N. KOTISWAR SINGH (A.K.Goel, CJ)
Decision
This appeal has been preferred against order of learned Single Judge setting asi de the order of dismissal passed against the respondent-writ petitioner. The writ petitioner was working as a constable in the Central Industrial Securit y Force (CISF) since 05.10.1989. On 14.09.2003 he was deployed at the main gate of Dragline Erection Yard of Eastern Coal Fields Limited (ECL) at Seetalpur, Wes t Bengal. He was charged for misconduct and negligence in performing his duties since at 19.30 hours he allegedly allowed 8-10 miscreants for taking out heavy m aterial which was the ECL property through the main gate. The value of the mater ials stolen was about Rs.9,60,000/-. CISF team raided nearby area and recovered the stolen materials on the next day. Allegation was that theft took place with the connivance of the writ petitioner. The charge framed against the writ petiti oner was as follows :- (cid:28)Article of Charge No.1 An act of gross misconduct and negligence in that CISF No.892291685 Const. B.C.D Das of SBP Camp, CISF Unit ECL Seetalpur was deployed in (cid:28)B (cid:29) shift duty on 14.0 9.2003 from 1300 hrs. to 2100 hrs. at main gate of Dragline Erection Yard. Durin g his duty hours at about 1930 hrs. he allowed 08 to 10 miscreants for taking ou t some heavy materials of ECL property by dragging out towards the main gate of Dragline Erection yard. Thus, he failed to prevent the theft of ECL property whi ch was his prime duty. This act on the part of No.892291685 Const. B.C.Das is gr oss indiscipline, negligence and unbecoming conduct being a member of discipline d Armed Force like CISF. Hence, the charge. (cid:29) (cid:28)Article of Charge No.II While on (cid:28)B (cid:29) shift duty from 1300 to 2100 hrs. on 14.09.2003 at main gate of Dra gline Erection Yard some materials worth Rs.9,60,000/- was stolen through his du ty post. On getting information from the management the CISF team searched/raide d nearby area and the above stolen material was recovered from the godown of Shr i Jugal Mudi at Chhata Dunga, Haripur on 15.09.2003 and handed over to the ECL M anagement of SBP. It has established that due to his connivance the above theft was occurred from his duty post. This act on the part of No.892291685 Const. B.C .Das tantamount to gross misconduct, dereliction and negligence on duty being a member of an Armed Force like CISF. Hence, the charge. (cid:29) After enquiry, enquiry report dated 21.02.2004 was submitted in favour of the wr it petitioner but the same was not accepted and vide order dated 22.03.2004 unde r Rule 54 of the Central Industrial Security Force Rules, 2001, the DIG, CISF, N EZ, Kolkata directed de novo enquiry. Enquiry Officer was appointed on 09.11.200 4 and Enquiry Officer submitted his report on 10.03.2005 holding the charge to b In order to prove a charge of connivance with the theft of property belo e proved. After following due procedure, the impugned order dated 13.04.2005 dis missing the writ petitioner from service was passed by the disciplinary authorit y. The departmental appeal against the said order of dismissal was also dismisse d. The writ petitioner, thereafter, approached this Court under Article 226 of the Constitution by submitting that the statement of sole witness PW 2, Budhan Majhi , was not corroborated and was not reliable. The said witness had earlier abs conded. No F.I.R. had been lodged with the local police. No action was taken aga inst the person from whom recovery was made. There was no provision for fresh en quiry. Learned Single Judge upheld the stand of the petitioner as follows :- (cid:28)13. nging to the respondent-department, the standard of proof required cannot be les s. The star witness of the department, Budhan Majhi, fled away and absconded on the earlier occasion when the enquiry was carried out. In the second enquiry, on the same charge against the petitioner, no reason whatsoever was shown as to wh y on the last occasion Budhan Majhi fled away and absconded. Admittedly, Budhan Majhi was not a witness of the department, but was working in a private firm. In volvement of the petitioner in the crime of conniving the theft alleged against him basically revolved around the evidence of Budhan Majhi. Except the statement of Budhan Majhi regarding removal of the items from the courtyard of the CISF a t the particular time, no other circumstantial evidence has been adduced by the department to show that immediately after completion of shift duty of the petiti oner, items were found stolen. The stolen items removed by the miscreants were n ot smaller in size not to catch the eyes of person, who was put to guard them. N o report regarding the theft or missing of such items from the courtyard whatsoe ver was submitted by the Constable, who happened to be in shift duty immediately after the charge of the shift of the petitioner. 14. Curiously enough, the police case, which was filed in the Police Station , was not allowed to be pursued for no reason shown whatsoever by the respondent department. The person from whom the stolen items were recovered was let off wi thout any enquiry whatsoever. The person who received the stolen items did not d ivulge the time of the theft and persons who were involved in the commission of theft were not booked neither any effort seems to have been made to nab the actu al culprit. The conduct of PW 2 in not informing the incident immediately and ab sconding during earlier occasion is suspicious. On careful analysis of the evide nce laid by the department to prove the charges against the petitioner, it trans pires that the evidence laid could not establish with all certainty that the ite ms were removed from the courtyard of CISF during the period of shift duty of th e petitioner. 15. On careful examination of the matter in its entirety, it transpires that the findings of the Inquiry officer against the petitioner is based on suspicio n and not on proof. Suspicion, as a matter of fact, cannot replace requirement o f proof of a fact, howsoever strong may the suspicion. Apparently, genesis of ch arges of the kind framed against the petitioner required stricter proof before h olding the petitioner guilty, however, in the instant case I am constrained to o bserve that the burden of proof of the charges was not discharged by the respond ent authority adequately thus leaving enough area for doubts and suspicion to mu ltiply, which eventually laid foundation for giving appropriate relief to t he p etitioner in this writ petition. In view of the above discussion, after having given thoughtful considera 16. tion in the entire gamut of facts, I am of the considered view that the findings arrived at against the petitioner is not based on sound reasoning and therefore punishment imposed by the department is not tenable in the eye of law. Accordin gly, the impugned order terminating the service of the petitioner stands set asi de and quashed. (cid:29) We have heard learned counsel for the parties. Main contention on behalf of the appellant is that since the writ petitioner was on duty at the gate when theft of a huge value took place, he could not be exon erated. The theft was established beyond reasonable doubt. Standard of proof req uired in a departmental enquiry was not that of a criminal enquiry and in exerci se of power of judicial review finding of enquiry officer, accepted by disciplin ary authority, was not liable to be interfered with unless the same was without evidence, as laid down, inter alia, in State of Orissa vs. Murlidhar Janna, AIR 1963 SC 404, State of Andhra Pradesh vs. S. Sree Rama Rao, AIR 1963 SC 1723 an d Government of Tamil Nadu vs. A. Rajapandian, AIR 1995 SC 561. It was submitted that this Court could not re-appreciate the evidence. It was neither a case of victimization nor a case of no evidence. The writ petitioner being on duty at th e gate could be held accountable for negligence when theft of high magnitude too k place. Mere fact that the eye-witness had not appeared on earlier occasion was no bar to his evidence being considered. The fact that the matter was not pursu ed with the police or action was not taken against the person from whom recovery was effected did not debar action being taken against the writ petitioner. Supe rior authority was not debarred from setting aside the order of exoneration afte r following due procedure. Express statutory power of directing further enquiry could not be given any technical meaning so as to limit the same to the material already on record. Thus, view taken by learned Single Judge was liable to be in terfered with. Learned counsel for the respondent supported the impugned order and submitted th at principle of retrial ought to be followed in ordering fresh enquiry and the earlier evidence had to be taken into account. He placed reliance on Satyajit Ba nerjee and others vs. State of W.B. and others, (2005) 1 SCC 115. We have given due consideration to the rival submissions. Question for consideration is whether a case for interference with the impugned order of dismissal was made out, in the facts and circumstances of the present c ase. There is no denial of the fact that the writ petitioner was posted at the gate a nd a theft took place, as alleged. Once it is so, in absence of malafides, it co uld not be held that the writ petitioner could not be held guilty. The enquiry o fficer has relied upon evidence which includes the statement of Budhan Majhi who fully supported the charge that the petitioner was posted on the gate and theft had taken place at that time. The enquiry officer held the said evidence, which was duly subjected to cross-examination, to be reliable for holding the charge to be proved. The finding of the enquiry officer was furnished to the writ petit ioner and thereafter accepted by the disciplinary authority and order of dismiss al from service has been issued after following due procedure of law. In these c ircumstances, the Writ Court cannot sit in appeal over the said finding on the g rounds mentioned in the impugned order. It could not be said that it was a case of mere suspicion and there was nothing to show that the writ petitioner had co mmitted any misconduct. Interference with the finding of misconduct was not cal led for. Accordingly, we are of the view that the impugned order cannot be sustained to t he extent of interfering with the finding of misconduct. The appeal is allowed and the impugned order is set aside. We are, however, of the view that having regard to the facts and circumstances o f the case, particularly when the writ petitioner had already served for almost 16 years at the time when the order of dismissal was passed and charge was of ne gligence the punishment of dismissal was highly disproportionate. Instead of req uiring reconsideration of order of punishment, it will be in the interest of jus tice to direct that the punishment of dismissal be converted to punishment of c ompulsory retirement. Ordered accordingly. Learned counsel for the appellant submitted that as per interim order of this Co urt dated 09.08.2010, the appellants have deposited a sum of Rs.68,810/- by way of Bank Draft in this Court. The respondent will be at liberty to withdraw the s ame. The same may be taken into account towards the dues of the respondent. The appellants may work out and pay the remaining dues of the writ petitioner withi n three months from the date of receipt of a copy of this order.