TMI Blog2006 (4) TMI 570X X X X Extracts X X X X X X X X Extracts X X X X ..... respect of the loss of goods suffered by it in the said incident of fire. 2. However, in respect of the said incident a disciplinary proceeding was initiated against the respondent on or about 11.1.1978 on an allegation of antedating one insurance cover note for ₹ 1 lakh after the said fire broke out on 22.10.1976 which is said to have been issued on 31.10.76. In the departmental proceedings the Enquiry Officer found him guilty of the said charge, whereupon he was removed from service by an order of the Disciplinary Authority dated 24.7.79. No second show cause notice however, was served upon him. He preferred a departmental appeal in terms of Rule 37 of the General Insurance (Conduct, Discipline Appeal) Rules, 1975 (Rules). The said appeal was dismissed by an order dated 29.9.1980. 3. In the meanwhile, the 'firm' filed a suit against the respondent herein for recovery of the insured sum of ₹ 1,22,795.64. The appellant herein was also impleaded as a party defendant therein. In the said suit, inter alia, the following issues were framed: 2. Whether valid contract of insurance was entered into between the plaintiff and defendant No. 1 through deft. No. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts it becomes evident that the departmental proceedings against the respondent had concluded in his removal from service. That conclusion was passed on the evidence placed before the Enquiry Officer which was evaluated by the Disciplinary Authority as well as the Departmental Appellate Authority. In a collateral suit filed by the consignor for damages for loss of goods by fire the defence was that the cover was antedated. While examining that defence was that the cover was antedated. While examining that defence the civil court came to the conclusion that the same was not proved. That, however, cannot dislodge the decision earlier taken in the departmental inquiry based on the material and evidence placed at the said enquiry. The correctness or otherwise of the conclusion reached by the departmental authorities would depend on the enquiry recorded and the ultimate conclusion reached by the authorities can be shaken only on an evaluation of that record. Even if a suit had been filed for setting aside the removal order, the civil court could not have acted as an appellate authority. Therefore, the finding recorded in the suit cannot dislodge the finding recorded, in the enquiry concl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ilable. 9. The Enquiry Officer in his report dated 5.5.79 recorded the allegations made as against the appellant in the disciplinary proceedings in the following terms: The brief facts of the case appear to be that Sh. N.M. Arya issued a cover note No. 09643 dated 21.10.76 covering a consignment of cotton bales valued for Rs. One lac in transit from Hansi to Phulwari Shariff by Truck No. HRR 7297 covering the risk of Marine Insurance T.P.N.D. and water damage charging a premium of ₹ 165/- plus ₹ 1/- as stamp duty totalling ₹ 166/-. This consignment while awaiting transhipment at the U.P. border near Ghaziabad caught fire on 22.10.76 resulting into heavy damage to the stock of cotton bales. It is alleged that the cover note No. 09643 was issued on or after 22.10.76 after the fire had broken out antedating the date of issue on 21.10.76. This is only one charge and that is that the cover note No. 09643 was issued after the fire damage to the consignment had taken place and cover note was antedated to 21.10.76. 10. Before the Enquiry Officer three witnesses were examined on behalf of the first respondent being S/Shri A.R.Sethi, D.D. Jain and K.L. Manchanda wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on record, it is well settled that a Court of judicial review would not interfere therewith. We have further noticed hereinbefore marked features of this case which make this case stand apart from other cases. 13. The self-same issue fall for consideration before a competent Civil Court. In the Civil Court a hand writing expert was examined who was of the opinion that instead and place of altering the despatch register from 23rd to 22nd it was really the other way round, namely, it was originally 22nd but the same had been altered to 23rd. Before the Civil Court also both Mr. A.R. Sethi and Mr. D.D. Jain were examined. Some of the witnesses on behalf of the respondent were also examined. The Civil Court held: If the original entry had been 23/10, then the figure '3' would have been written as written in the next serial number and it only shows that the original figure was 22. An effort has been made to convert it into 23. So, it is just possible that defendant No. 1 after taking into possession the despatch register might have tried to convert it into 23 just to create confusion. 14. As regard the purported forgery committed by the appellant herein the Civil Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on to interfere with the order of penalty even if the same was found to be based on no evidence. 18. It is, however, beyond any controversy that when a crucial finding like forgery was arrived at on an evidence which is non est in the eyes of law, the civil court would have jurisdiction to interfere in the matter. This Court remitted the matter back to the learned Single Judge of the High Court for disposal on other points raised by the appellant in the writ petition. 19. The learned Single Judge as noticed hereinbefore directed the appointment of a fresh enquiry officer on the premise that the judgment of the Civil Court is a relevant piece of evidence. The Division bench, however, set aside the said judgment stating that in view of the unequivocal observations made by this Court as regard the findings recorded in the civil suit by the firm cannot dislodge the findings recorded by the enquiry officer and in that view of the matter the learned Single Judge was not justified in quashing the punishment. The Division Bench observed that the judgment of the Single Judge suffers from mutually destructive findings. 20. In its judgment, after remand, the learned Single Judge quot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pathi v. State of Bank of India and Ors. (1984)ILLJ2SC . (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 (1986)IILLJ390SC (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 Director (Inspection quality Control) Export Inspection Council of India and Ors. v. Kalyan Kumar Mitra and Ors. 1987 (2) CLJ 344. (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 (1969)IILLJ377SC , Kuldeep Singh v. Commissioner of Police and Ors. (1999)ILLJ604SC ]. 22. We may notice that this Court in Ramendra Kishore Biswas v. State of Tripura and Ors. (1999)IILLJ192SC was clearly of the opinion that a civil suit challenging the legality of a disciplinary proceedi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ency of evidence. Though, the disciplinary authority cited one witness Shri R.A. Vashist, Ex. CVI/Northern Railway, New Delhi, in support of the charges, he was not examined. Regarding documentary evidence, Ext. P-1, referred to in the enquiry report and adverted to by the High Court, is the order of appointment of the appellant which is a neutral fact. The enquiry officer examined the charged officer but nothing is elicited to connect him with the charge. The statement of the appellant recorded by the enquiry officer shows no more than his working earlier to his re-engagement during the period between May 1978 and November 1979 in different phases. Indeed, his statement was not relied upon by the enquiry officer. The finding of the enquiry officer that in view of the oral, documentary and circumstantial evidence, the charge against the appellant for securing the fraudulent appointment letter duly signed by the said APO (Const.) was proved, is, in the light of the above discussion, erroneous. In our view, this is clearly a case of finding the appellant guilty of charge without having any evidence to link the appellant with the alleged misconduct. The High Court did not consider thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it may deem fit in the circumstances of the case. 40 - Memorial - An employee whose appeal under these Rules has been rejected by the Chairman/Chairman-cum-Managing Director or in whose case such appellate authority has enhanced the penalty either on appeal under Rule 24 or on review under Rule 39 (2) may address a memorial to the Chairman/Chairman-cum-Managing Director in respect of that matter within a period of a 6 months from the date the appellant received a copy of the order of such appellate authority. 27. The appellate authority, therefore, while disposing of the appeal is required to apply his mind with regard to the factors enumerated in sub-rule 2 of Rule 37 of the Rules. The judgment of the civil court being inter parties was relevant. The conduct of the appellant as noticed by the civil court was also relevant. The fact that the respondent has accepted the said judgment and acted upon it would be a relevant fact. The authority considering the memorial could have justifiably came to a different conclusion having regard to the findings of the civil court. But, it did apply its mind. It could have for one reason or the other refused to take the subsequent event into ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation of any provisions of the Constitution or in failure of justice; (2) whether the findings of the disciplinary authority are warranted by the evidence on record; and (3) whether the penalty imposed is adequate; and thereafter pass orders confirming, enhancing etc. the penalty, or may remit back the case to the authority which imposed the same. Rule 27(2) casts a duty on the Appellate Authority to consider the relevant factors set forth in clauses (a), (b) and (c) thereof. There is no indication in the impugned order that the Director General was satisfied as to whether the procedure laid down in the Rules had been complied with; and if not, whether such non- compliance had resulted in violation of any of the provisions of the Constitution or in failure of justice. We regret to find that the Director General has also not given any finding on the crucial question as to whether the findings of the disciplinary authority were warranted by the evidence on record. It seems that he only applied his mind to the requirement of clause (c) of Rule 27(2) viz. whether the penalty imposed was adequate or justified in the facts and circumstances of the present case. There being non-complia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ul to do so. In Manager, Reserve Bank of India Bangalore (supra) this Court observed: The findings of the learned Tribunal, as noticed hereinbefore, are wholly perverse. It apparently posed unto itself wrong questions. It placed onus of proof wrongly upon the appellant. Its decision is based upon irrelevant factors not germane for the purpose of arriving at a correct finding of fact. It has also failed to take into consideration the relevant factors. A case for judicial review, thus, was made out. 37. In that case also, in view of the admissions made by the Management witness, it was found that tribunal's findings were based on no evidence and, thus, irrational. This Court also noticed that the circumstances relied upon by the tribunal were wholly irrelevant stating: The circumstances relied upon, in our opinion, are wholly irrelevant for the purpose of considering as to whether the respondents have completed 240 days of service or not. A party to the lis may or may not succeed in its defence. A party to the lis may be filing representations or raising demands, but filing of such representations or raising of demands cannot be treated as circumstances to prove their ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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