TMI Blog2020 (9) TMI 1293X X X X Extracts X X X X X X X X Extracts X X X X ..... dence was led, cross-examination was conducted and opportunities of addressing arguments, raising objections, and filing appeal were granted. The conclusion obtained was based upon these very evidences and was detailed and well-reasoned. Even in general parlance, where an appellate or reviewing Court/authority comes to a different conclusion, ordinarily the decision under appeal ought not to be disturbed in so far as it remains plausible or is not found ailing with perversity. The present case is neither one where there is no evidence, nor is it one where we can arrive at a different conclusion than the disciplinary authority, especially for the reasons stated hereunder. Effect of criminal enquiry on disciplinary proceedings - HELD THAT:- It is beyond debate that criminal proceedings are distinct from civil proceedings. It is both possible and common in disciplinary matters to establish charges against a delinquent official by preponderance of probabilities and consequently terminate his services. But the same set of evidence may not be sufficient to take away his liberty under our criminal law jurisprudence - The employer always retains the right to conduct an independent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and B.V. Balaram Das, Advs. JUDGMENT SURYA KANT, J. 1. The present civil appeal, which has been heard over videoconferencing, is directed against the order dated 05.05.2009 passed by a Division Bench of the High Court of Bombay in WP No. 1001/2001, whereby Appellant's plea for quashing disciplinary proceedings and setting-aside a dismissal order on charges of corruption and extra-constitutional conduct while employed as a paramilitary officer, was rejected. Factual Matrix 2. The Appellant joined the Central Industrial Security Force ( CISF ) in January, 1995 as a Sub-Inspector. After completing requisite training in Hyderabad, he was allocated to Mumbai Office of the Western Zone and posted at the local unit of Bharat Petroleum Corporation Ltd. ( BPCL ) in March, 1996. Although he was initially deputed to perform shift duty, but since July, 1997 he was deployed in the Crime and Intelligence Wing. As evidenced by an office order dated 08.05.1998, the Appellant was specifically entrusted with conducting surprise searches of personnel and taking strict action against anyone indulging in corruption. 3. On 28.02.1999 at around 6 PM, Constable Ram Avtar Sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wful orders to Constable KK Sharma to give false statement to substantiate the aforementioned fake GD entry; and third, corruption for illegally collecting bribes from contractors of BPCL through his subordinates. All these charges were contested by the Appellant, who sought and was provided a detailed list of evidence and documents. b. Investigation and Enquiry Report 8. The enquiry officer submitted a self-speaking report on 17.09.1999, which contained written statements and depositions of six witnesses who were substantiating the charges, as well as evidence led by the Appellant in the form of five defence witnesses. Inspector Hiralal Chaudhary (PW-1) testified to the search of Sharma, the seizure of a sum of Rs. 10,780 from his person, and the lack of any explanation by him on the spot regarding source of the suspicious sum. Head Constable KK Sharma (PW-2), who as per the Appellant's defence had handed over the seized amount as loan amount to Sharma, negated this alternate version and instead implicated the Appellant by mentioning that not only did he not give any money to anyone, but that he had instead been threatened by the Appellant into giving a false statement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the CISF Control room in Vashi stated that in his presence no message had been conveyed to the Appellant regarding the incident. PK Nashkar (DW-4) states that during his duty at the 'Quarter Guard' in the Vashi Complex at 7 PM, he was directed by ASI SP Mishra (DW-3) to convey a message to the Appellant that there was a phone call for him from Jaimal Singh (DW-2). Finally, Pravin Dhanji Parmar (DW-5), who had been performing house-keeping work at the BPCL refinery for the past twenty years on behalf of contractor DK Parmar Co, stated that he did not hand over any money to Sharma. In addition, the enquiry officer perused the relevant GD entries and other documents on record. 11. Based on these numerous evidences and after according the Appellant an opportunity to cross-examine all the witnesses as well as leading his own substantive arguments, the enquiry officer through report dated 17.09.1999 held the Appellant guilty under each of the three charges. The enquiry officer found as a matter of fact that the GD No. 257, entered at 6:05 PM on 28.02.1999, was a false entry made at the instance of the Appellant by Surjan Singh (PW-5), so that an alternate version could be c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... perandi of collecting illegal monies through a network of subordinate officers; and more crucially, his attempts at suppressing witnesses and fabricating evidence when caught. The disciplinary authority noted that the enquiry officer had followed the prescribed procedure and no challenge had been made earlier to his impartiality and no request to change the enquiry officer was ever made. Therefore, no malice or bias could even be suggested at this stage of the disciplinary proceedings. Similarly, the Appellant's attempt to implicate other officials was held to be irrelevant, as the present enquiry was limited only to the Appellant's conduct. 15. Thus, considering the serious nature of the misconduct and the rank and duty bestowed upon the Appellant, and the multiplicity of the charges which called into question both the personal integrity of the delinquent officer and the collective image of the force, the Disciplinary Authority passed the order dated 20.11.1999, imposing exemplary punishment of dismissal from service Under Rule 29(a) read with Rule 31(a) - Schedule II of CISF Rules, 1969. d. Decision of the Appellate Authority 16. The Appellant preferred departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intimidating subordinate officers to falsely testify to support his alternate version. 20. The High Court categorically held that the domestic enquiry followed all procedures and was in conformity with principles of natural justice and the Appellant had been accorded numerous opportunities of putting forth his version of events. The CISF Rule sought to be relied upon by the Appellant, was found to have been amended in 1981, therefore, leaving no requirement for a separate show cause notice at the stage of penalty. The writ petition was accordingly dismissed on 05.05.2009. Contentions of Parties 21. The instant appeal being the last resort, learned Senior Counsel for the Appellant, once more, took us through the enquiry-record and highlighted how the main witness (CW-1) had retracted his statement, and how there was no corroboration between witnesses and documents. The conduct of the enquiry officer was called into question, contending that his decision to put questions to witnesses was unfair. Acting as both the judge and prosecutor, the enquiry officer was alleged to have vitiated the entirety of the proceedings. Till the last minute, the Appellant vehemently stuck to h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ified. Analysis 24. At the outset, it may be noted that the Appellant has chosen to raise some new grounds before this Court, despite those issues involving questions of fact. Nevertheless, a few pertinent questions of service jurisprudence do arise in this appeal, which we deem appropriate to answer. I. Scope of Judicial Review in Service Matters 25. Learned Counsel for the Appellant spent considerable time taking us through the various evidences-on-record with the intention of highlighting lacunas and contradictions. We feel that such an exercise was in vain, as the threshold of interference in the present proceedings is quite high. The power of judicial review discharged by Constitutional Courts Under Article 226 or 32, or when sitting in appeal Under Article 136, is distinct from the appellate power exercised by a departmental appellate authority. It would be gainsaid that judicial review is an evaluation of the decision-making process, and not the merits of the decision itself. Judicial Review seeks to ensure fairness in treatment and not fairness of conclusion. It ought to be used to correct manifest errors of law or procedure, which might result in significan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he strict proof of legal evidence and findings on that evidence are not relevant. Adequacy of evidence or reliability of evidence cannot be permitted to be canvassed before the Court/Tribunal. In Union of India v. H.C. Goel [(1964) 4 SCR 718 : AIR 1964 SC 364 : (1964) 1 LLJ 38] this Court held at p. 728 that if the conclusion, upon consideration of the evidence reached by the disciplinary authority, is perverse or suffers from patent error on the face of the record or based on no evidence at all, a writ of certiorari could be issued. 27. These parameters have been consistently reiterated by this Court in a catena of decisions, including: (i) State of Tamil Nadu v. S. Subramaniam, (1996) 7 SCC 509. (ii) Lalit Popli v. Canara Bank, (2003) 3 SCC 583. (iii) Himachal Pradesh State Electricity Board Ltd. v. Mahesh Dahiya, (2017) 1 SCC 768. 28. It is thus well settled that the Constitutional Courts while exercising their powers of judicial review would not assume the role of an appellate authority. Their jurisdiction is circumscribed by limits of correcting errors of law, procedural errors leading to manifest injustice or violation of principles of natural justice. Put diff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uth. Indeed, it may be necessary to do such direct questioning in certain circumstances. Further, learned Counsel for the Appellant, except for making a bald allegation that the enquiry officer has questioned the witnesses, did not point to any specific question put by the officer that would indicate that he had exceeded his jurisdiction. No specific malice or bias has been alleged against the enquiry officer, and even during the enquiry no request had been made to seek a replacement; thus, evidencing how these objections are nothing but an afterthought. 32. Rather it appears that the delinquent person received a fair trial, which can illustratively be determined by analysing whether he received an opportunity of adducing evidence, cross-examining witnesses and whether depositions were recorded in his presence [Union of India v. T.R. Varma, 1958 SCR 499 p. 10]. The record clearly elucidates that all these essentials had been duly observed in the present proceedings. Opportunity to seek assistance of another officer was accorded, right of making representation was granted before each authority, multiple opportunities were granted to lead evidence, cross-examine witnesses, and r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment and plea of leniency 36. In our considered opinion, the Appellant's contention that the punishment of dismissal was disproportionate to the allegation of corruption, is without merit. It is a settled legal proposition that the Disciplinary Authority has wide discretion in imposing punishment for a proved delinquency, subject of course to principles of proportionality and fair play. Such requirements emanate from Article 14 itself, which prohibits State authorities from treating varying-degrees of misdeeds with the same broad stroke. Determination of such proportionality is a function of not only the action or intention of the delinquent, but must also factor the financial effect and societal implication of such misconduct [Jameel v. State of Uttar Pradesh, (2010) 12 SCC 532, p. 14-16.] . But unlike in criminal cases, in matters of disciplinary proceedings Courts only interfere on grounds of proportionality when they find that the punishment awarded is inordinate to a high degree, or if the conscience of the Court itself is shocked. Thus, whereas imposition of major penalty (like dismissal, removal, or reduction in rank) would be discriminatory and impermissible for tr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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