R.N.Bera v. The Commandant Central Industrial Security Force

It is not in dispute that the petitioner herein joined in CentralIndustrial Security Force (herein after called CISF) as Constable on15.06.1994 and on completion of training, he was transferred to MadrasPort Trust ( now Chennai Port Trust) on 31.08.1995 and while he was soperforming his duty, a memorandum of Article, under Rule 34 of the CISFRules 1969 was issued on the petitioner, on 18.02.1999 along withsupporting documents, and also a copy of the preliminary report, dated25.02.1999, submitted by the Assistant Commandant, CISF Unit to the firstrespondent. The petitioner submitted his written statement of defence on22.02.1999.

It is seen that the charge framed, originally against thepetitioner, as Article of Charge is available in Annexure – I of thetypedset, which reads as follows :" No.941401807 Constable R.N.Bera of CISF Unit, Chennai Port Trust, Chennai is charged with gravemisconduct, indiscipline, negligence and facilitatingcrime in connivance with others. Const. R.N.Bera wasinstrumental in criminal conspiracy and theft ofvaluable imported materials by associating with otherswhich happened at about 0350 hours on 9.1.99.Thecriminals with connivance of CISF Staff attempted tocommit a theft of imported materials on 8/9.1.99during the 'C' shift hours. Being a member of CISF,Const. R.N.Bera was supposed to inform to the higherofficer for safeguarding the Chennai Port Trustmaterials, but he failed in his duty and exhibitedgross misconduct and reprehensible conduct by himselffacilitating the crime in connivance with others. Hence the charge. "

The enquiry officer namely, Assistant Commandant / E.O, CISF Unit, after holding enquiry had held in his first enquiry report, dated27.05.1999, as follows :" Constable R.N.Bera was instrumental in criminalconspiracy and theft of valuable imported materialsfrom container in J.D-5 by associating with otherswhich happened at about 03.50 hrs on 9.1.99.Hence, the article of charge-I of the chargememorandum No.V-15014/Estt.I/99/1468, dated 8.2.99 isproved beyond any doubt. "

On receipt of the copy of enquiry report, the petitioner sent hiswritten representation, dated 14.06.1999, whereby, the petitioner deniedthe charge framed against him, as false and baseless. He has furtherstated in his representation that he was sanctioned 15 days casual leaveby the ' C ' company Commander, by issuing leave certificate, dated08.01.1999, pursuant to the same, on the same date, 08.01.1999, along with https://hcservices.ecourts.gov.in/hcservices/ his family members, the petitioner proceeded to his native place, Jaipurby the Jaipur Express, for which he had left the Port Trust Campus atabout 4.00 p.m, on 08.01.1999 and therefore, the petitioner could not haveparticipated in the alleged theft of imported valuable materials, committed on 09.01.1999, at 3.50 a.m, at the premises of Chennai PortTrust. The petitioner herein, further submitted his reply that he hadnever been instrumental for any criminal conspiracy with HC/GD B.S.Pakhareand constable Somveer Singh, as found by the Enquiry Officer, in hisreport.

Based on the first enquiry report, submitted by the AssistantCommandant, the first respondent herein, had passed his final order, dated29.06.1999, whereby, awarded the penalty of ' dismissal of the petitionerfrom service, under Rule 29A Schedule – II of CISF Rules, 1969. Aggrievedby which, the petitioner preferred appeal before the second respondentherein. Considering the appeal preferred by the petitioner, the secondrespondent, by his order, dated 10.08.1999, allowed the appeal and therebyset aside the enquiry report submitted by the Assistant Commandant andalso the final order, dated 29.06.1999 passed by the first respondent anddirected the disciplinary authority to hold 'de novo' enquiry from thestage of issuing fresh specific and definite charge.

The operative portion of the aforesaid order of the secondrespondent, dated 10.08.1999 reads as follows: " I, therefore, set aside the enquiry report and alsothe final order, dated 29.6.99 passed by the Disciplinary Authority. The Appellant is re-instatedand directed to report to CISF Unit, Ch.P.T. Chennai, within 15 days from the date of receipt of this order. It is further directed that the Disciplinary Authoritywill hold a de novo enquiry from the stage of issue offresh specific and definite charge. "

It is not in dispute that the second respondent had allowed theappeal preferred by the petitioner, by his order, dated 10.08.1999,whereby he set aside the enquiry report submitted by the AssistantCommandant and the final order passed by the Commandant, CISF, firstrespondent herein, on the ground that the Enquiry Officer had committedirregularities, which was not taken into consideration by the firstrespondent, the disciplinary authority. The second respondent orderedfurther, for conducting 'de novo' enquiry. Pursuant to the aforesaidorder, dated 10.08.1999, the following Article of Charge, as seen in Annexure- II, was framed by the first respondent, thereby amended theearlier charge as follows :" CISF No.941401807 Constable R.N.Bera along withNo.941401746 Constable Somveer Singh visited theresidence of HC/GD B.S.Pakhare at about 1500 hours on6.1.99. No.902332304, Constable J.J.Godwin of CISFUnit, Chennai Port Trust, Chennai noticed the above https://hcservices.ecourts.gov.in/hcservices/ personnel while going to the residence of HC/GDB.S.Pakhare.

In the the enquiry report, submitted after the order for de novoenquiry, the enquiry officer, namely, the Assistant Commandant, CISF Unit, has given his finding that the Article of Charge – I, framed against thepetitioner, as per the charge memorandum, dated 08.02.1999 was proved. Aggrieved by the said finding, the petitioner herein, submitted hiswritten representation, dated 05.06.2000 to the first respondent. Thefirst respondent, based on the enquiry report, filed by the AssistantCommandant, passed his final order, dated 18.06.2000, under Rule 29 (A)Schedule – II of CISF Rules, 1969, whereby ordered dismissal of thepetitioner from service. Aggrieved by the order passed by the firstrespondent, the petitioner preferred appeal before the second respondent, who confirmed the final order, passed by the first respondent anddismissed the appeal, against which, the petitioner herein has filed thiswrit petition, challenging the impugned orders passed by the respondents.

Heard Mr.M.Md.Ibrahim Ali, learned counsel appearing for thepetitioner and Mr.M.Dhamodharan, learned Standing Counsel for CentralGovernment, who appears for the respondents. https://hcservices.ecourts.gov.in/hcservices/

The learned counsel appearing for the petitioner, has questionedthe Enquiry report and the impugned orders passed by the respondents, mainly on the following three grounds. (a) The 'de novo' enquiry conducted by the Assistant Commandant, CISFis contrary to law and against principles of natural justice. (b) The findings and conclusion arrived at by the enquiry officer, which are basis for awarding penalty of dismissing the petitioner fromservice are perverse and not sustainable in law. (c) The punishment imposed by the first respondent and confirmed bythe second respondent, is disproportionate, exorbitant and contrary tolaw, hence not sustainable.

The first contention raised on behalf of the petitioner is thatthe 'de novo' enquiry ordered by the second respondent and conducted bythe Assistant Commandant, CISF Unit, are vitiated by principles of naturaljustice. According to the learned counsel for the petitioner, afterallowing the appeal, preferred by the petitioner and having set aside theearlier enquiry report submitted by the Assistant Commandant, and afterthe final order passed by the first respondent, dated 10.08.1999, thesecond respondent could not have ordered for 'de novo' enquiry. We are ofthe considered view that the first respondent, being the appellateauthority, is empowered under Section 9 (2) of CISF Act, 1968, to allowthe appeal and set aside the earlier enquiry report, dated 31.05.1999 andalso the final order, passed by the first respondent, dated 29.06.1999.

It is settled proposition of law that mere irregularity in theenquiry report is not sufficient for ordering 'de novo' enquiry and thesine quonan or pre condition required for ordering 'de novo' enquiry are :(1) The authority ordering 'de novo' enquiry must be empowered withthe power of setting aside the enquiry report, submitted by the enquiryofficer and the order passed by disciplinary authority, either asappellate authority or revisional authority. (2) Further, to order 'de novo' enquiry, there should be patentirregularity or illegality in the earlier enquiry report submitted by theenquiry officer, and(3) Without setting aside the earlier report, based on adequatereasoning, 'de novo' enquiry, cannot be ordered by the authority.

The latin term 'de novo' convey the meaning 'afresh', 'a new'.For setting aside the earlier enquiry report and for ordering 'de novo'enquiry, as discussed earlier, mere irregularity in the procedure followedby the enquiry officer would not be sufficient. Unless there is patentirregularity or illegality, the authority cannot mechanically order for'de novo' enquiry, by setting aside the earlier enquiry report and theorder passed by the disciplinary authority. https://hcservices.ecourts.gov.in/hcservices/

The Division Bench of this Court has held in the decisionS.Goparam v. I.G., Central Industrial Security Force, reported in (2006) 4M.L.J 274, that the appellate authority, as per Section 9 of CISF Act,1968, cannot pass any order for suo moto review. Here in this case, thesecond respondent has not passed any order on the basis of suo motoreview, but, being appellate authority, while considering the appealpreferred by the petitioner on merits, held that the enquiry officer hadcommitted certain irregularities in his enquiry report, dated 31.05.1999,which warranted the appellate authority to allow the appeal and to setaside the earlier enquiry report and also order for 'de novo' enquiry.

As per the order of the appellate authority, dated 10.08.1999,the charge already framed against the petitioner herein, was not proved, with reference to the statements recorded during the course of enquiry andthe findings of the enquiry officer failed and according to the appellateauthority, the disciplinary authority had not taken into consideration ofall the irregularities committed by the enquiry officer and on thatground, the appeal preferred by the petitioner herein was allowed and theenquiry report submitted by the Assistant Commandant, CISF, dated31.05.1999 and the final order, dated 29.06.1999, passed by the firstrespondent, were set aside by the appellate authority and 'de novo'enquiry was ordered. Considering the seriousness of the allegedoccurrence, we are of the view that there is no illegality in the orderpassed by the second respondent, to conduct 'de novo' enquiry, afterhaving setting aside the earlier enquiry report, on the ground of patentirregularity.

According to the petitioner herein, his request for change ofenquiry officer was not considered by the respondents. The said plea fortransferring the enquiry officer was raised by the petitioner, on theground that the enquiry officer, appointed, had been subordinate to theprevious commandant, who passed the earlier order of dismissal against thepetitioner and as such there was possibility for the enquiry officer beingguided by the earlier commandant, and raised apprehension, that he wouldnot get proper justice from the said enquiry officer, but the same was notconsidered by the respondents. The next contention raised on behalf of thepetitioner is that the request of the petitioner, seeking to appoint oneShri.T.M.Nair, NISA, working in Hyderabad as his Defence Assistant, wasalso rejected by the Enquiry Officer and hence, the same has to beconstrued as denial of reasonable opportunity to the petitioner, and assuch, the enquiry proceeding was vitiated by principles of natural justice.

We are of the considered view that denial of reasonableopportunity to any delinquent in a Departmental Enquiry proceeding isagainst the principles of natural justice, and that would vitiate the Departmental Enquiry. Similarly, if it is substantiated by supportingmaterials to establish that due to some reason or other, the EnquiryOfficer had prior personal bias, against the delinquent official, the plea https://hcservices.ecourts.gov.in/hcservices/ of the delinquent official to change the Enquiry Officer would bemaintainable.

It was not denied by the respondents that the enquiry officer hadbeen subordinate to the previous Commandant, who passed the earlier orderof dismissal against the petitioner, but there is no supporting materialto show that the Enquiry Officer had prior personal bias against thepetitioner. In the decision State of Punjab v. V.K.Khanna reported in(2001) 2 SCC 330, at page number 336, the Hon'ble Apex Court has held asfollows :" The tests of 'real likelihood' and 'reasonablesuspicion' are really inconsistent with each other. Wethink that the reviewing authority must make adetermination on the basis of the whole evidencebefore it, whether a reasonable man would in thecircumstances infer that there is real likelihood ofbias. The court must look at the impression whichother people have. This follows from the principlethat justice must not only be done but seen to bedone. If right-minded persons would think that thereis real likelihood of bias on the part of an inquiringofficer, he must not conduct the enquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough..."In the light of the aforesaid decision of the Hon'ble Supreme Court, weare of the considered view that merely on the ground that the EnquiryOfficer was subordinate to the earlier commandant, who passed the order ofdismissal of the petitioner from service, the petitioner cannot raise anyreasonable apprehension and thereby seek change of Enquiry Officer andfurther, as discussed earlier, there is no supporting material to holdthat the Enquiry Officer had any prior personal bias against thepetitioner herein.

Mr.M.Dhamodharan, learned Standing Counsel for CentralGovernment, contended that the petitioner cannot ask a particular officialfrom Hyderabad to be appointed as his Defence Assistant, since, there wereabout 800 personnels working in CISF Unit, Chennai, and according to him, the petitioner had informed to suggest three names of CISF officials, whoare working in Chennai, in order to appoint any one of them, out of thethree officials, to be suggested by him, as Defence Assistant for thepetitioner, but having failed to avail the opportunity given to him, thepetitioner cannot raise the aforesaid defence belatedly, at this stage, and hence, the same is not sustainable. It is further contended on behalfof the respondents that on account of Administrative convenience and toavoid unnecessary expenditure, to be incurred by the Government, therequest of the petitioner to appoint a particular official of NISA,Hyderabad, as his Defence Assistant was rejected by the respondents. https://hcservices.ecourts.gov.in/hcservices/

After having gone through the facts and circumstances discussedearlier, we are of the considered view that the plea of the petitioner, seeking an order to change the enquiry officer, merely on the ground thatthe enquiry officer had been subordinate to the earlier Commandant, whopassed an adverse order against the petitioner, is not sustainable tochange the enquiry officer. The petitioner could have suggested any threenames of the officials working at the CISF Unit, Chennai, as intimated tohim, in order to appoint any one of them as his Defence Assistant, hence, we are of the considered view that the petitioner, having failed infurnishing three names of CISF officials working in Chennai Unit, so as toapprove one of the three officials, as his Defence Assistant, cannot seekan order for appointing a particular official, working in Hyderabad, to behis Defence Assistant, and therefore, we hold on the facts andcircumstances that the rejection of the request of the petitioner inappointing a particular official, working in Hyderabad to be his DefenceAssistant cannot be construed as denial of reasonable opportunity orviolation of principles of natural justice, as contended by the learnedcounsel for the petitioner. We are in agreement that in writjurisdiction, under Article 226 of the Constitution, this court normallycannot interfere with the finding of the authorities, by way of re-appreciation of evidence and it is settled proposition of law, that unlessthe finding of the authority is perverse or illegal, this court cannotinterfere with the same, based on certain irregularities with the findingof the impugned orders, passed thereon.

The second contention raised by the learned counsel for thepetitioner is that the finding of the Enquiry Officer, who conducted thede novo enquiry, is contrary to the evidence and as such the same has tobe construed as perverse finding, liable to be set aside, and the order ofdismissal of the petitioner, passed by the first respondent and confirmedby the second respondent, based on the finding of the Enquiry Officer arealso not sustainable in law.

The Hon'ble Supreme Court of India in the decision South BengalState Transport Corporation v. Sapan Kumar Mitra, reported in (2006) 2 SCC584, at page number 596, has ruled thus :" 19... when the finding of fact was arrived at withoutany material or upon a view of the facts which couldnot reasonably be entertained or the facts found weresuch that no person acting judicially and properlyinstructed as to the relevant law would have come tothat determination, the decision can be said to beperverse. "

In the light of the rulings of the Hon'ble Apex Court, we are ofthe view to hold that the finding of an Enquiry Officer would be construedas perverse finding, only when the finding is against the evidence or suchfinding is not supported by any evidence. https://hcservices.ecourts.gov.in/hcservices/

According to the learned counsel for the petitioner, there is nocogent and corroborative evidence against the petitioner to prove thecharge levelled against him and that the impugned orders passed by therespondents, based on the perverse findings, and hence, liable to be setaside. According to him, the appellate authority, namely, the secondrespondent herein, without considering the order passed by the firstrespondent, based on the perverse finding, has mechanically confirmed theorder of the first respondent, contrary to the CISF Rules 1969 andprinciples of natural justice and on that ground, pleaded that theimpugned orders are liable to be quashed.

Learned counsel for the petitioner would further contend that theprosecution witnesses, who had already given statements against thepetitioner, have retracted their statements in the de novo enquiry, stating that the petitioner had never involved in the criminal conspiracyand that they had given their earlier statements against the petitioner, only on compelling circumstances. Hence, learned counsel for thepetitioner contended that the finding of the Enquiry Officer in the 'denovo' enquiry is against the evidence available on record and as such thefinding is perverse and the order of dismissal passed by the firstrespondent, confirmed by second respondent, based only on the perversefinding and hence, not sustainable in law.

As per the case of the respondents, Head Constable B.S.Pakhare(P.W.1), constable, Somveer Singh (P.W.2), and the petitioner herein hadconspiracy on 06.01.1999 to commit the theft on 09.01.1999, at 3.50 a.m,in the premises of Chennai Port Trust. But, it is not in dispute that thepetitioner had gone to his native place, Jaipur, on the date of occurrenceon 09.01.1999, pursuant to the leave sanctioned by the Group Commandant. It is seen that in the charge framed against the petitioner, after theorder for 'de novo' enquiry, that it has been further incorporated in theearlier charge, that the petitioner had arranged for the theft on06.01.1999, and he was the brain behind the conspiracy. As per the Enquiryreport, dated 13.05.2000, it has been stated that on 09.01.1999, at about3.50 a.m, valuable imported materials were stolen at the Chennai PortTrust premises, by break opening the lock of the container JD-V, and thestolen goods were transported in the lorry bearing Registration No. TMW9412.

According to the respondents herein, Head Constable B.S.Pakhare(P.W.1) and Constable Somveer Singh (P.W.2), had directly involved in thetheft, which was committed on 09.01.1999, but, they were made asprosecution witnesses, P.W.1 and P.W.2, against the petitioner in the 'denovo' enquiry. As stated in the enquiry report, the said witnesses havespecifically denied the alleged conspiracy and involvement of thepetitioner, in the alleged theft case. The other prosecution witnesseshave not spoken to anything about the conspiracy of the petitioner in thealleged occurrence of theft, that had taken place on 09.01.1999. https://hcservices.ecourts.gov.in/hcservices/

According to the petitioner, there could be no incident of theft, as alleged by the respondents, since no complaint was filed and nocriminal case was registered, based on the alleged occurrence. Learnedcounsel for the petitioner contended that the finding of the EnquiryOfficer is perverse and not supported by any evidence, and as the firstrespondent has passed the order of dismissal of the petitioner fromservice, based on the said finding of the enquiry officer, the impugnedorders, according to him are unsustainable. Though the alleged offence isof break opening the lock of the container JD-V, in the premises of the Chennai Port Trust, and valuable imported materials, such as 11 numbersof C.B.Drums containing Chloroguine and Chloramphenical chemicals and 9numbers of bales of imported costly raw silk, were said to be stolen andtransported by a lorry, the respondents were duty bound to initiatecriminal proceedings, so as investigate the crime and punish the culprits. But, admittedly, no complaint was lodged by the respondents before thepolice.

It is not disputed by the respondents that the petitioner hadgone to his native place on the alleged date of occurrence, for which, hehad been granted 15 days leave, by his Group Commandant with effect from11.01.1999, on account of his sister's marriage and he had been permittedto avail holidays on 09.01.1999 and 10.01.1999, being second saturday andsunday respectively and accordingly, the petitioner had booked traintickets to go to his native place Jaipur, along with his family members by Jaipur Express, and on account of the same, he left Chennai Port TrustCampus at 4.00 p.m, and boarded the train at 5.30 p.m, at Chennai on08.01.1999, for which, he had produced Railway tickets and othersupporting documents, which is not disputed by the respondents.

As per the charge originally framed, prior to the 'de novo'enquiry, as stated in Article of Charge-I is that the petitioner herein, while functioning as Constable in CISF Unit, Chennai Port Trust, Chennai, at about 15 Hrs on 06.01.1999, visited the residential family quarters ofHC/GD.B.S.Phakare ( P.W.1) along with the another constable Somveer Singh(P.W.2) and conspired to arrange for the theft, but could not commit thesame on the aforesaid date. But, as per the charge framed against thepetitioner, subsequent to the order for 'de novo' enquiry, in addition tothe earlier charges, it has been further incorporated that the petitionerwas the brain behind the conspiracy.

The second respondent, by his earlier order, dated 10.08.1999,had allowed the appeal preferred by the petitioner, and by setting asidethe earlier enquiry report, and the final order passed by the firstrespondent, ordered for 'de novo' enquiry, the aforesaid order, availableat page number 37 of the typedset, reads as follows :" The Enquiry Officer has mainly depended on thestatement of Shri.B.K.Pattanayak, Asst. Commandant andhis preliminary enquiry report to prove the charge. The https://hcservices.ecourts.gov.in/hcservices/ Enquiry Officer failed to show the preliminary enquiryreport and the statement of the Head ConstableB.K.Phakare and Constable Somveer Singh when theyappeared as PWs during the regular enquiry and obtaintheir signature. The Enquiry Officer did not ask anyquestion during the regular enquiry about the connivanceof constable R.N.Bera with them in committing the thefton 06.01.1999 which was not succeeded. Further, the Enquiry Officer also failed to ask about thecontradictory statement during the preliminary andregular enquiries. The charge framed against the Appellant is notproved with reference to the statements recorded duringthe course of enquiry and therefore, the findings of the Enquiry Officer fails. The Disciplinary Authority hasalso not taken into consideration of the irregularitiescommitted by the Enquiry Officer. I therefore, set asidethe enquiry report and also the final order, dated29.06.1999 passed by the Disciplinary Authority. "

The finding of the enquiry officer, as per the earlier enquiryreport, dated 27.05.1999 is that the delinquent officials, who involvedin the theft case, namely, Head Constable B.S.Phakare and ConstableSomveer Singh had given statements about the involvement of the petitionerherein, in the conspiracy, alleged to have taken place on 06.01.1999, andthat they could not commit the theft on the said date. The said enquiryreport was admittedly set aside by the second respondent. In the de novoenquiry, it is seen that the aforesaid delinquent Head ConstableB.S.Pakhare and Constable Somveer Singh were examined as prosecutionwitnesses 1 and 2, however, they did not support the case against thepetitioner. As contended by the learned counsel for the petitioner, thereis absolutely no material to incorporate further, in the earlier chargethat the petitioner was the brain behind the conspiracy.

We have gone through the enquiry report, wherein, HC/GD,B.S.Phakare (P.W.1) has answered for question number 1, in the crossexamination by the petitioner as follows :" Due to mental tension what ever Commandant / Asst. Commandant told me, I have written but I don't know whatI have written. "Question number 4, put to HC/GD B.S.Pakhare (P.W.1), by thepetitioner herein is as follows :" In the above theft case, any relationship with me or not ?" The answer given by P.W.1 is thus : " There was no theft case, How I can say about your involvement ?"While he was cross examined by the petitioner, Constable Somveer Singh(P.W.2) replied that he had mentioned the name of the petitioner, in hisearlier statement, as compelled by the Assistant Commandant B.K.Patnayak. https://hcservices.ecourts.gov.in/hcservices/ Therefore, it is quite clear that the prosecution witnesses 1 and 2 havenot stated anything against the petitioner in the de novo enquiry, withregard to the alleged conspiracy and involvement of the petitioner herein.

As per the finding of the enquiry officer in his enquiry report, it has been stated that on 06.01.1999, at about 18.15 Hrs, Somveer Singh(P.W.2) and the petitioner were discussing with a civilian in asuspicious manner at the Parrys Corner, Chennai, and that was establishedby the statement given in writing by constable J.J.Godwin (PW5), P.W.6 andP.W.7.

It is seen that Constable J.J.Godwin (P.W.5), has given hisstatement that on 06.01.1999, he had seen the petitioner along with Somveer Singh (P.W.2) going together to the residence of HC/ GDB.S.Phakare (P.W.1), but strangely, in the cross examination by thepetitioner, for question number 1 put to P.W.5, has replied in negative. The said question number 1 and as answered, available in the enquiryreport is as follows : "Have you seen me entering in the house of HCB.S.Pakhare or coming out from the house ?", for which, P.W.5 answered"No", further, he has answered that he did not know the name of the streetand quarters around the residence of HC/ GD, B.S.Phakare (P.W.1).

Even, as per the enquiry report, constable J.J.Godwin (P.W.5)could not say the door number, name of the street and the numbers of theresidential quarters nearby the residence of HC/GD B.S.Phakare, but, hehad given his earlier statement that, on 06.01.1999, that he had seen thepetitioner herein, going together with constable Somveer Singh (P.W.2) tothe house of the Head Constable, B.S.Phakare (P.W.1), and hence, theevidence of P.W.5 is only self contradictory.

According to the respondents, the alleged theft was committed on09.01.1999 at about 3.50 a.m, but, there is absolutely no prima faciematerial or evidence to show that the petitioner had conspiracy incommitting the crime, as held by the enquiry officer. The enquiry reportdoes not speak about the name and other details of the person, with whom, the petitioner was talking in a suspicious manner at 6.15 p.m, on06.01.1999 along with P.W.2. Further, the enquiry report does not speakany other details, so as to hold that the said civilian had involved inthe alleged theft and in order to hold the alleged involvement of thepetitioner. There is no material available in the enquiry report, to showthat he had conspiracy with P.W.1 and P.W.2 and planned in committing thetheft on 06.01.1999 itself. Even the persons, who were examined asprosecution witnesses, have not stated anything, so as to prima facieestablish the alleged involvement of the petitioner in the crime, said tohave been committed on 09.01.1999.

It is seen from the enquiry report, that only few of theprosecution witnesses have stated that they saw the petitioner going in tothe residential quarters of the Head Constable B.S.Phakare (P.W.1) on https://hcservices.ecourts.gov.in/hcservices/

06.01.1999, but they could not say even the door number, street and otherparticulars of the said residential quarters of P.W.1. Further, it is notin dispute that HC/ GD B.S.Phakare (P.W.1) was Head Constable and SomveerSingh (P.W.2) was a constable, like the petitioner in the CISF Unit, andas such, they were not strangers to each other. Therefore, even, if thestatement of the said witnesses that the petitioner had visited the houseof P.W.1, on 06.01.1999, along with P.W.2 is admitted as true, it wouldnot be construed as evidence, for the alleged conspiracy against thepetitioner in committing theft on 09.01.1999, in the absence of anysubstantive evidence.

In the enquiry report, there is no reliable material to show thatthe petitioner had hatched any conspiracy on 06.01.1999, along with P.W.1and P.W.2 to commit theft on the said date. But, without any prima faciematerial or evidence, the enquiry officer has held that the charge againstthe petitioner has been proved. It is not in dispute that the petitionerhad been to his native place, Jaipur, with his family members, when thealleged theft was occurred on 09.01.1999 at 3.50 a.m, and the stolen goodswere allegedly transported in a lorry at about 5.00 a.m, on the aforesaiddate.

It is pertinent to note that as per the finding of enquiryofficer, as found in his enquiry report, the lorry, bearing registrationnumber TMW 9412 was used to transport the stolen valuable imported goodsfrom the premises of the Chennai Port Trust, and one Kumar, an outsiderwas instrumental for the alleged theft, that was committed on 09.01.1999at 3.50 a.m, and the stolen goods were transported in the aforesaid lorry, bearing Registration Number TMW 9412. But, strangely, no criminalcomplaint was given by the respondents to the police to investigate thecrime and to book the culprits, though valuable imported goods, such as 11numbers of C.B.Drums containing Chloroguine and Chloramphenical chemicalsand 9 numbers of bales of imported costly raw silk were allegedly stolen. Neither the owner of the said vehicle bearing registration number TMW9412, nor its driver was summoned and examined for the reasons best knownto the respondents.

According to the respondents, valuable imported materials, suchas 11 numbers of C.B.Drums containing Chloroguine and Chloramphenicalchemicals and 9 numbers of bales of imported costly raw silk were stolenby broke open the contained JD-V on 09.01.1999 at 3.50 a.m. The allegedoccurrence is a theft of serious nature, which cannot be taken so lightly, by the respondents or their subordinate officers, despite the same, nocriminal action was initiated by the respondents, to investigate the crimeand punish the culprits. There is no satisfactory explanation from therespondents, as to why criminal complaint was not given before the police. As the alleged occurrence is a serious offence of theft of valuableimported materials at the premises of the port trust, by broke open thecontainer. The respondents were duty bound to initiate criminalproceedings against the culprits, but, no criminal complaint was given by https://hcservices.ecourts.gov.in/hcservices/ the respondents or their authorised subordinate officials before thepolice, for the reasons best known to them.

As the alleged occurrence is a serious crime committed within thepremises of the Chennai Port Trust, by broke open the container JD-V andstolen valuable imported materials, the authorities could have initiatedcriminal action, as per procedure known to law. But, no criminal actionwas initiated by the respondents for the reasons best known to them, buthas initiated departmental enquiry, as if the offence committed was withinthe purview of the domestic enquiry of the respondents, which is highlycondemnable, since the failure in lodging criminal complaint, wouldsafeguard the culprits, who had committed theft, by break opening thecontainer JD-V and transported the stolen goods in a lorry. Even though, the respondents have stated that stolen goods were transported in thelorry, bearing Registration Number TMW 9412 at 5.00 a.m, on 09.01.1999,with the connivance of one Kumar, an outsider, without initiating criminalaction, the actual fact of the alleged offence was not brought to light, by the respondents and the same has been suppressed in the grounds ofdomestic enquiry.

We are of the considered view that the respondents, withouttaking proper steps to initiate criminal proceedings, and to conductinvestigation, in order to book the culprits, without realising theirresponsibility, for the reasons best known to the respondents , nocriminal complaint was given before the police.

If the finding of the enquiry officer is against the evidence ornot supported by evidence, it has to be construed as perverse finding. Inthis case, absolutely, there is no evidence or material to show that thepetitioner, who had gone to his native place, Jaipur on 08.01.999, aftergetting proper sanction of 15 days leave, had conspired with otherpersons, P.W.1 and P.W.2 on 06.01.1999 and committed theft at the premisesof Chennai Port Trust on 09.01.1999 at 3.50 a.m, The alleged conspiracy bythe petitioner with Head Constable B.S.Phakare (P.W.1) and Constable, Somveer Singh (P.W.2) on 06.01.1999, has not been established by therespondents and therefore, the finding of the enquiry officer, with regardto the alleged conspiracy in committing theft, is without evidence.

On a perusal of the enquiry report and the impugned orders, weare of the considered view that there is no prima facie material orevidence available against the petitioner. Therefore, we are of theconsidered view that the finding of the enquiry officer not supported byevidence, has to be construed only as perverse finding and as such, thesame is not sustainable in law and the punishment of dismissal of thepetitioner from service imposed by the first respondent and confirmed bythe second respondent, based on the perverse finding, is liable to be setaside and as such, the impugned orders passed by the respondents 1 and 2are liable to be quashed. https://hcservices.ecourts.gov.in/hcservices/