High Court · 2012

2. The writ petitioner is a resident of Rajasthan and was employed in the G eneral Reserve Engineering Force (GREF). He is governed by Central Civil Service (Classification, Control and Appeal) Rules, 1965 in the matter of discipline. O n 12.8.1996, he was transferred from 96 RCC(P) Chetak-Barmer (Rajasthan) and pos ted at HQr. 48 BRTF (P) Udayak-Demwe/Tezu (Arunachal Pradesh). He submitted bill s for transporting his luggage and TA/DA, in all amounting to Rs.24,000/-. On re ceiving an anonymous complaint, the Chief Engineer directed a preliminary enquir y and thereafter the disciplinary authority issued charge sheet dated 14.7.1998 alleging that the petitioner submitted false taxi fare claim of Rs.3000/- for hi s movement along with his wife and that his claim for Rs.21,000/- for transporti ng his luggage from Barmer (Rajasthan) to Tezu was not genuine. The petitioner d enied the charge by submitting that he hired taxi from Nagaur to Delhi for which receipt was issued by the taxi owner which was genuine. Similarly bill for tran sportation of luggage was genuine. The explanation was not accepted and an enqui ry was ordered. The enquiry was conducted by Shri SD Bajaj, Superintending Engin eer (Civil). The enquiry officer held the charges to be established. Based on th e said finding, order dated 3.1.2002 was passed imposing penalty against him. Ag grieved thereby, the petitioner approached this Court under Article 226 of the C onstitution. Learned Single Judge allowed the writ petition holding that no reasonabl 3. e man could have reached such a finding on the available material in absence of relevant evidence. The adverse finding was reached against the petitioner withou t there being any relevant material to draw such inference. It was observed the finding recorded by the enquiry officer was based primarily on the evidence give n by Major PR Sarma (SW 2) who conducted the preliminary enquiry and stated tha t the charged officer admitted the charge and evidence of AK Singh (SW 5) who st ated that he did not find luggage of the petitioner in the barrack. The truck on which luggage was claimed to have been loaded did not cross the check gate on t he border of Arunachal Pradesh. It was observed that there was no evidence that the petitioner had joined service without luggage. The transporters who issued t he receipt were not examined to dispute the genuineness of the receipt. In absen ce thereof, the charges levelled against the petitioner could not be held proved . The operative part of the findings of learned Single Judge is as follows: (cid:28)13.1 It is glaring to notice in the instant case that the disciplinary authorit y did not bring any direct evidence or, what might be considered as the best and relevant evidence to prove the charge against the petitioner. The findings of t he enquiry officer, as is already recorded, is based primarily on the evidence g iven by the Commanding Officer (SW-5) who stated that he did not notice any lugg age of the petitioner in the concerned camp. But this officer did not himself in spect the room of the petitioner. The fact that no luggage was noticed by SW-5 a nd the fact that the concerned truck on which luggages were loaded were not foun d to have crossed the check gate on the boarder of Arunachal Pradesh coupled wit h the views expressed that during the relevant period of time, it would be diffi cult for a truck to cross the various water obstacles, it was concluded that the claim for reimbursement of cost of transfer of luggage is a false claim made by the petitioner.

13.2 But no evidence was produced through anyone who is attached with the c harged officer at his transferred station to indicate that the petitioner had jo ined the station without bringing any luggage to the said station. The transport er who has issued the receipt for transport charge of luggage was also not exami ned to determine the veracity of explanation furnished by the petitioner that as per convenience of the transporter, the luggage booked by the petitioner, altho ugh loaded on one truck at the starting point of journey, could have been transp orted to its destination through some other truck.

13.3 Yet without the availability of the best and relevant evidence, merely on the basis of the opinion expressed by SW-5, who made a general observation o f inspection of camp area without specific inspection of petitioner’s accommodat ion, a guilt finding has been recorded against the petitioner.

13.4 In the view of this Court, the authorities in the instant case had not onl y failed to adduce the best evidence but the Enquiry Officer too made the mistak e of relying on what may at best be termed as mere suspicion and surmises of SW- 5 to hold the petitioner guilty of the charge.

13.5 It might also be noted that the charged officer did not admit his guilt b efore the Enquiry Officer but his alleged admission before SW-2 and SW-5 were re lied upon to find the petitioner guilty. 13.6 The Enquiry Officer also erred in proceeding to take an adverse view becau se of alleged failure of the charged officer to establish his bonafide as the bu rden to prove the charge cannot be shifted from the person who leveled the charg e and be placed on the charged officer.

13.7 The charged officer’s reply was not appropriately considered and an advers e view was taken during the enquiry by placing heavy reliance on the opinions ex pressed by SW-2 and SW-5 which in the opinion of this Court, were wrongly consid ered as proof by the enquiry officer.

13.8 The adverse finding was reached against the charged officer without there b eing any relevant materials to draw such inferences and the conclusion reached c an only be described as speculations and conjectures. (cid:29)

4. espondent. We have heard learned counsel for the appellants. None appears for the r Learned counsel for the appellants submitted that interference by learne 5. d Single Judge was not justified on the ground of insufficiency of material in s upport of the charge. Re-appreciation of evidence was not permissible. We are un able to accept the submission. Admittedly, the petitioner joined in the State o f Arunachal Pradesh on transfer from a far off place in Rajasthan. The genuinene ss of the receipt issued by the transporter/taxi driver was never disputed by th e person who had issued the same. Since the petitioner joined service in the Sta te of Arunachal Pradesh on transfer from a far off place in Rajasthan, it could be presumed to have brought luggage with him and for that purpose, he must have hired some kind of transport. Admittedly, no reimbursement was given to him. In absence of consideration of these vital aspects, finding of enquiry officer coul d certainly be held to be perverse. Re-appreciation of evidence is different fro m going into perversity. In exercise of power of judicial review, perversity of finding can certainly be gone into. The allegation was based only on an anonymou s complaint. Mere fact that no luggage was noticed by SW-5 and the fact that the concerned truck on which luggage was loaded was not found entered in the record s of the State of Arunachal Pradesh is not enough to draw presumption that the b ills produced by the petitioner for claiming reimbursement of transportation cha rges are not genuine. There was no material in support of the allegation that bi lls were forged or are not genuine. Thus, we are of the view that the finding of the enquiry officer is not based on legal material, as rightly held by the lear ned Single Judge. We also note the fact that the respondent has already retired from service.

6. s accordingly dismissed. In view of above, we do not find any merit in this appeal and the same i